BANCROFT  LIBRARY 

<> 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


WALTER  WADSWORTH    BRADLEY 

1878-1950 

Walter  W.  Bradley  was  born  in  San  Jose  and 
received  the  degrees  of  B.S.  and  E.M.  from 
the  University  of  California.  From  1912  to 
1046  he  was  associated  with  the  California 
Division  of  Mines,  serving  as  State  Mineral 
ogist  for  the  last  eighteen  years  of  that  period. 
His  published  works  relate  to  mining,  proc 
essing,  and  geology.  This  book  is  from  his 
private  collection,  presented  to  the  Bancroft 
Library  by  Mrs.  Alice  Roberts  Bradley. 


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MINING  LAW 

FOR  THE 

PROSPECTOR,  MINER,  AND 
ENGINEER 


By 

H.  W.  MACFARREN 


Published  by  the 
MINING  AND  SCIENTIFIC  PRESS,  SAN  FRANCISCO, 

and 

THE  MINING  MAGAZINE,  LONDON. 
1911. 


COPYRIGHTED  1911 

BY 
DEWEY  PUBLISHING  COMPANY. 


BANCROFT 
LIBRARY 


PREFACE 


In  adding  another  work  on  mining  law  to  those  already 
before  the  public,  it  is  necessary  to  give  a  reason.  The 
present  standard  works  on  the  subject  are  the  production 
of  mining  attorneys,  and  while  the  value  of  their  works 
is  unquestioned,  they  are,  perforce,  more  valuable  and 
suitable  for  practising  attorneys  and  in  connection  with 
mining  litigations  than  for  miners  and  as  a  guide  in  the 
field.  This  work  has  been  prepared  for  the  nrner  by  a 
miner — using  the  word  miner  as  a  generic  term  to  include 
all  who  may  be  interested  in  the  subject  of  mineral  rights 
and  titles  in  contradistinction  to  mining  attorneys — 
though  it  is  believed  that  the  work  will  not  be  without 
elementary  interest  and  value  to  the  law  profession. 

The  purpose  in  view  is  to  give  a  simple  and  easily 
grasped,  though  comprehensive  idea  of  the  mining  law, 
showing  its  fabric  and  structure,  that  the  reader  and 
student  may  obtain  the  basic  principles  and  facts  upon 
which  to  take  up  either  the  more  advanced  study  of 
mining  law  or  use  it  intelligently  and  satisfactorily  as  a 
prospector,  surveyor,  claim  owner,  or  property  manager. 
It  represents  the  experience  and  observation  of  the  writer 
in  the  mining  profession  and  as  a  mineral  examiner  of 
the  Field  Service  of  the  General  Land  Office,  in  which 
capacity  he  has  been  in  daily  contact,  in  both  office  and 
•field,  with  miners,  mineral  claimants,  and  the  subject  of 
mining  rights  and  titles. 

H.  W.  MACFARREX. 

Salt  Lake  City,  Utah,  September  1,  1910. 


TABLE  OF  CONTENTS 


CHAPTER.  Page. 

I.  Origin  of  American  Mining  Law 9 

II.  Public  Land  and  Its  Survey 16 

III.  Where  Locations  May  Be  Made 28 

IV.  Who  May  Make  Locations 38 

V.  Lode  Location — Discovery 40 

VI.  Lode    Location — Discovery    Work 44 

VII.  Lode  Location — Location  Notice 47 

VIII.  Lode  Location — Laying  Out  and  Staking 52 

IX.  Lode    Location — Changing    Boundaries,    Amended 

Location,   Relocation   63 

X.  Lode    Location — Annual   Labor 67 

XI.  Lode  Location — Resumption  of  Work,  Forfeiture, 

Abandonment    76 

XII.  Millsite  Location    82 

XIII.  Placer   Location    86 

XIV.  Lodes  Within  Placers   98 

XV.  Tunnel  Site  Location 101 

XVI.  Patent 106 

XVII.  Lode   Patent— Survey    Ill 

XVIII.  Lode  Patent— Application  and  Entry 117 

XIX.  Patent— Placer,  Known  Lodes  Within  Placers,  Mill- 
sites    122 

XX.  Adverse  Claim   126 

XXI.  Protest     130 

XXII.  Patent  Work    134 

XXIII.  Apex  or  Extralateral  Right 138 

XXIV.  Coal    Land    146 

XXV.  Timber  and  Stone  Act 154 

XXVI.  Use  of  Timber  on  Public  Land '. .  156 

XXVII.  Timber  and  Mines  Within  National  Forests 161 

XXVIII.  Water    Appropriation..                                                .  167 


TABLE  OF  CONTENTS 

Page. 

Appendix  A.  Digest  of  State  Statutes  Relative  to 
Mineral  Locations  180 

Appendix  B.  United  States  Statutes  and  Regu 
lations  of  the  General  Land  Office,  Approved 
March  29  1909 195 

Appendix  C.  Manual  of  Instructions  for  the  Sur 
vey  of  the  Mineral  Lands  of  the  United  States.  285 


MINING  LAW 

FOR  THE 

PROSPECTOR,  MINER,  AND  ENGINEER 


CHAPTER  I 

Origin  of  American  Mining  Law 

The  discovery  of  gold  in  California  was  made  in  1848,  and 
was  immediately  followed  by  the  immigration  to  that  part  of 
the  world  of  thousands  and  hundreds  of  thousands  of  men 
of  every  class,  occupation,  and  extraction.  These,  arriving  in 
the  New  Eldorado,  found  it  to  be  a  wild,  unpopulated  region, 
far  removed  from  organized  civilization;  one  in  which,  to  a 
large  extent,  every  man  made  his  own  law.  Led  by  that  instinct 
of  proceeding  collectively  along  orderly  and  definite  line?,  which 
is  observed  even  in  the  lowest  of  animals  and  finds  its  highest 
development  in  the  educated,  thinking,  untramelled  American, 
they  at  once  proceeded  to  establish  customs  and  rules  for  their 
guidance.  It  was  in  these  customs  and  rules  that  American 
mining  law  had  its  birth,  and  from  which  it  has  been  developed. 

Upon  what  were  these  early  and  incipient  laws  modeled? 
Some  presume  to  see  in  them  the  already  existing  mining  laws 
and  customs  of  Mexico  and  other  countries;  but  a  careful  con 
sideration  indicates  that  they  were  mainly  evolved  by  the  newly 
made  miners  to  meet  the  conditions  in  which  they  found  them 
selves.  The  simple  wisdom  of  these  early  customs  and  laws, 
and  the  extent  to  which  they  have  become  our  present  American 
mining  law,  is  the  grandest  monument  that  can  ever  be  raised 
to  the  nobility  and  sterling  qualities  of  these  pioneers. 

The  first  step  in  the  making  of  the  law  was  the  formulating 
of  rules  to  be  observed  in  the  immediate  vicinity  of  each  camp. 
These  were  adopted  in  mass-meetings  by  the  miners  of  the 
camp,  who  termed  the  area  over  which  they  should  extend  a 
district.  As  the  States  and  Territories  in  which  mining  was 
carried  on  became  organized,  they,  recognizing  the  marked  sim 
ilarity  of  the  customs  and  rules  of  the  various  mining  districts — 
which  has  been  called  the  American  common  law  of  mining — 

9 


10  MINING  LAW 

framed  their  mining  laws  upon  the  same,  with  the  expressed 
or  implied  idea  that  where  these  customs  and  rules  were  not 
in  conflict  with  the  State  and  National  laws,  they  would  be 
accepted  as  evidence  in  controversies  and  would  govern  deci 
sions.  The  National  laws  and  regulations  were  subsequently 
framed  along  these  lines. 

In  considering  the  mining  law  of  today,  it  should  be  remem 
bered  that  it  is  based  on  the  customs  and  rules  of  the  miners, 
and  that  in  the  absence  of  adverse  statutes,  regulations,  or  deci 
sions,  the  ideas  of  practical  miners  will  be  taken  and  allowed 
to  prevail,  so  far  as  can  be  consistently  done.  The  present 
mining  law  is  contained  in  the  Federal  Statutes  or  Acts  of 
Congress,  in  the  regulations  and  decisions  of  the  General  Land 
Office,  in  the  State  statutes,  and  in  the  decisions  of  the  Federal 
and  State  courts,  also  to  some  extent  in  the  remaining  rules 
and  customs  of  any  still  existent  local  mining  districts. 

The  early  prospectors  and  miners  were  really  trespassers  upon 
the  public  domain,  appropriating  it  and  its  mineral  contents 
without  the  sanction  of  any  Federal  law.  Though  they  acted 
in  most  cases  under  district  regulations  and  State  laws,  these 
were  unable  to  confer  to  the  miners  any  actual  title  to  the 
ground  which  they  were  working,  as  the  ownership  was  vested 
in  the  United  States.  The  Acts  of  Congress  of  1866  and  1870 
were  the  first  real  attempts  at  providing  laws  for  the  protection 
of  miners  and  the  disposal  of  mineral  land  to  them.  The  Act 
of  May  10,  1872,  superseding  or  extending  the  previous  ones 
of  1866  and  1870,  is  the  basis  of  our  present  law,  and  we  are 
not  concerned  with  the  small  differences  of  previous  legislation, 
except  in  the  case  of  claims  located  prior  to  the  Act  of  1872. 
This  Act  is  part  of  the  Revised  Statutes  (abbreviated  R.  S.). 
Amendments  and  subsequent  Acts  are  termed  Acts  of  Congress. 
These  Federal  Statutes,  being  the  National  laws  on  mining,  are 
the  highest  and  governing  authority,  and  are  in  force  through 
out  the  public-land  States  except  where  provision  to  the  con 
trary  has  been  made  by  Congress. 

The  General  Land  Office  or  Land  Department,  as  the  office  in 
charge  of  the  disposal  of  the  public  lands,  has  the  authority 
to  make  and  enforce  regulations  for  such  disposal,  subsidiary 


ORIGIN  11 

to  and  consistent  with  the  Federal  Statutes.  The  United  States 
mining  laws  as  contained  in  the  Federal  Statutes  and  the  mining 
regulations  of  the  General  Land  Office  are  issued  by  that  office 
under  the  title,  'United  States  Mining  Laws  and  Regulations 
Thereunder';  they  are  found  in  this  volume  as  Appendix  B. 
Almost  equally  important  with  the  regulations  are  the  Decisions 
of  the  Land  Department,  known  as  the  L.  Ds.  These  contain 
the  decisions  and  circulars  of  the  General  Land  Office  and  Depart 
ment  of  the  Interior  regarding  public-land  questions.  The  sub 
ject  of  mining  law,  mainly  with  regard  to  patents,  occupies  a 
large  part  of  the  38  volumes  now  issued. 

The  State  statutes  being  subordinate  to  the  Federal  Statutes 
and  unable  to  increase  or  to  take  away,  except  by  restriction, 
from  the  general  rights  conferred  by  the  Federal  Statutes,  are 
mainly  concerned  with  specifying  how  the  details  shall  be  per 
formed  to  obtain  the  mining  rights  granted  by  the  Federal  Stat 
utes.  A  digest  of  the  more  important  points  of  these  forms 
Appendix  A  of  this  work.  A  study  of  them  indicates  that  the 
principal  matters  they  take  up  are  to  specify  the  time  within 
which  to  mark  the  boundaries  and  record  the  claim,  the  time 
within  which  to  do  the  discovery  work  and  its  nature,  how  the 
claim  shall  be  marked,  details  of  the  location  certificate,  etc.; 
that  they  are  in  the  nature  of  regulations,  rather  than  primary 
legislation;  that  they  can  be  dispensed  with — in  fact,  California 
for  many  years  prior  to  1909  had  no  State  mining  statutes, 
while  Alaska  has  none  today — with  about  the  only  difference  of 
allowing  wider  latitude  under  the  Federal  Statutes  in  those 
details  they  restrict;  and  that  by  making  the  Federal  Statutes 
more  detailed,  all  necessity  of  State  mining  statutes  would  be 
done  away  with. 

The  customs  and  rules  of  the  local  mining  districts,  where 
any  such  customs  and  rules  may  remain  or  are  being  enforced 
today,  are  of  similar  purpose  but  less  weight  than  the  State 
statutes,  with  which  as  well  as  with  the  Federal  Statutes  they 
must  harmonize.  They  should  be  complied  with  as  consistently 
as  possible,  since  the  Federal  Statutes  recognize  and  give  some 
weight  to  these  local  customs  and  rules.  In  the  early  days 
when  mining  was  carried  on  in  isolated  and  but  little  organized 


12  MINING  LAW 

communities  far  from  the  seat  of  government,  the  district  reg 
ulations  were  a  most  important  thing  to  secure  order  and  justice 
to  all,  but  as  these  communities  were  brought  under  organized 
and  capable  Territorial  and  State  control  and  the  mining  laws 
were  developed,  the  necessity  of  these  regulations  became  less 
and  less  until  now  there  appears  to  be  no  call  for  them  except 
in  such  isolated  communities  as  the  remote  mining  districts 
of  Alaska. 

The  decisions  of  the  courts,  the  'judge-made'  law,  interpreting 
and  applying  the  mining  statutes  and  customs,  are  found  in  the 
various  court  reports.  These  constitute,  perhaps,  the  most  im 
portant  part  of  mining  law,  for,  on  account  of  the  meagerness 
of  the  Federal  Statutes — hardly  more  than  suggestive  in  some 
cases — the  courts  have  found  it  necessary  to  taake  the  law  by 
their  decisions  as  the  different  questions  came  into  litigation. 
A  few  of  the  court  decisions  are  at  variance  with  each  other 
or  the  general  ideas  that  prevail  in  mining,  but  taken  as  a 
whole,  they  savor  of  an  attempt  to  do  justice  to  the  miner  along 
his  own  simple  lines  of  reasoning,  and  not  according  to  the 
technicalities  and  intricacies  of  law. 

Connected  with  the  subject  of  what  is  the  mining  law  and 
where  it  may  be  found,  are  the  standard  text-books  on  mining 
law.  These  are  as  follows:  Lindley  on  Mines  (2  vol.,  1903); 
Snyder's  Mines  and  Mining  (2  vol.,  1902) ;  Morrison's  Mining 
Rights  (14th  Ed.,  1910) ;  Shamel's  Mining,  Mineral,  and  Geolog 
ical  Law  (1907) ;  Martin's  Mining  Law  and  Land  Office  Pro 
cedure  (1908);  Costigan's  American  Mining  Law  (1908);  Rick- 
etts'  Manual  of  American  Mining  Law  (1911). 

The  present  law  provides,  (1)  for  the  location  of  lode  claims 
upon  all  mineral  deposits  of  a  vein  or  lode  character;  (2)  for 
the  location  of  placer  claims  upon  mineral  deposits  which  are 
essentially  different  from  lode  deposits,  and  of  oil  and  gas  lands; 

(3)  for   the   location    of   veins    or   lodes    within    placer    claims; 

(4)  for  the  location  of  millsites  to   provide  surface   upon  non- 
mineral  ground  for  reduction  of  ores,  etc.;    (5)   for  the  location 
of  tunnel  sites  to  cut  and  claim  blind  lodes.     To  these  may  be 
added  the  allied   laws  referring  to  coal  lands  and  timber  and 


ORIGIN  13 

stone  lands,  and  the  extralateral-right  law  allowing  the  vein  to 
be  followed  indefinitely  on  its  dip. 

The  substance  of  these  laws  is  that  by  making  a  location  upon 
the  public  domain  in  conformity  to  the  law,  the  miner  acquires 
a  right  of  possession  to  the  ground  he  appropriates,  which  is 
called  a  'possessory  right.'  He  cannot  be  divested  of  his  pos 
sessory  right  to  the  ground,  except  it  be  shown  that  he  has 
not  complied  with  the  law,  or  that  the  ground  is  more  valuable 
for  some  other  purpose.  On  a  lode  or  placer  claim,  by  doing 
annually  $100  worth  of  work  tending  to  develop  the  claim,  he 
preserves  his  possessory  right  from  year  to  year.  He  can  at 
any  time,  by  having  survey  made,  patent  application  filed,  and 
$500  worth  of  improvements  made,  pay  the  purchase  price  of 
$2.50  per  acre  for  placer  claims  and  $5  for  lode  claims,  and 
obtain  an  absolute  or  fee  title — a  title  not  dependent  on  condi 
tions — from  the  Government,  that  is  irrevocable  except  in  the 
case  of  fraud  or  serious  error  in  the  law. 

The  Act  of  May  10,  1872,  comprehending  nearly  all  of  our 
present  mining  law,  was  coined  from  the  customs  and  rules 
of  the  miners.  For  nearly  twenty-five  years  these  customs  and 
rules  had  been  developed  and  tested  under  strenuous  conditions, 
before  they  were  incorporated  into  the  Federal  Statutes.  In 
this  is  seen  the  reason  why  the  Act  has  so  well  stood  through 
changing  conditions  to  the  present  day.  The  framers  were  con 
tent  with  giving  only  the  bare  outline,  the  fundamentals  of 
the  law,  leaving  the  details  to  the  States  and  districts,  and  to 
the  courts.  Most  of  the  questions  have  been  solved  as  they 
arose  by  the  courts,  and  mainly  in  this  way  has  the  mining 
law  been  built  up.  The  tendency  has  been  to  require  the  Land 
Department  to  meet  the  new  conditions  arising  that  were  not 
properly  subject  to  court  jurisdiction,  instead  of  making  new 
laws  or  statutes.  The  additions  since  the  Act  of  1872  have 
been  few,  and  only  those  that  were  literally  forced.  It  is  rec 
ognized  by  all  that  much  of  the  present  law  needs  to  be  revised 
and  added  to,  to  meet  the  new  conditions,  but  there  are  no 
well  formed  ideas  as  to  how  this  is  to  be  accomplished,  and 
this  is  just  the  reason  that  the  Act  of  1872  has  stood  so  long 
with  but  little  addition. 


14  MINING  LAW 

The  student  of  mining  law  should  bear  in  mind  the  statement 
of  Mr.  Justice  Field,  one  of  the  ablest  interpreters  of  mining 
law,  that  "the  mining  laws  are  to  be  read  in  the  light  of  matters 
of  public  history,  relating  to  the  mineral  lands  of  the  United 
States,"  a  history  of  sixty  years,  comprehending  a  change  from 
a  remote  unpopulated  wilderness  to  a  comparatively  well  settled 
country,  where  the  prospector  in  many  cases  has  been  driven 
by  the  advancing  farmer  and  cattleman  to  the  highest  and 
steepest  mountain-sides  or  the  sheltering  depths  of  the  Forest 
Reserves;  a  change  from  the  simple  idea  of  the  true-fissure 
quartz  vein  to  orebodies  of  every  conceivable  form  and  degree 
of  intricacy;  the  exploitation  of  almost  every  known  mineral, 
where  formerly  only  a  few  were  contemplated;  and,  incidentally, 
the  greatest  mineral  development  in  the  history  of  the  world, 
much  of  which  must  be  credited  to  the  fostering  spirit  of  the 
mining  laws.  The  student  who  carefully  considers  the  subject 
is  filled  with  a  deep  respect  for  the  framers  of  the  Act  of  1872. 
He  realizes  that  suitable  laws  could  not  have  been  adopted 
immediately  as  new  conditions  and  requirements  arose,  without 
making  the  statute  books  a  chaos  of  premature  and  relegated 
laws.  Furthermore,  that  whereas  the  laws  of  human  affairs 
have  been  studied  thousands  of  years  from  unchanging  funda 
mental  facts,  the  laws  of  mining  as  applicable  to  the  United 
States,  are  of  comparatively  recent  origin  and  have  been  subject 
to  newly  arising  basic  facts,  with  which  the  Land  Department 
and  courts  have  had  to  struggle  while  the  statute-makers  have 
without  doubt  remained  too  apathetic. 

To  the  miner,  in  many  cases,  the  mining  law  is  full  of  un 
known  terror,  for  the  reason  that  he  does  not  understand  its 
origin,  purpose,  and  methods;  consequently  he  is  obsessed  by 
his  fear  of  the  unknown.  It  is  recommended  that  he  endeavor 
to  understand,  not  so  much  the  letter  of  the  law,  as  its  prin 
ciples,  its  scope,  and  its  limitations.  This  can  best  be  accom 
plished  by  acquiring  a  clear  idea  of  its  source  and  method  of 
application,  and  the  functions  of  its  adjudicators.  He  should 
obtain  a  good  conception  of  the  Federal  Statutes  and  the  rela 
tion  of  all  other  law  to  it,  and  of  the  workings  and  jurisdiction 
of  the  Land  Department.  After  obtaining  an  idea  of  the  Federal 


ORIGIN  •          15 

Statutes  and  General  Land  Office  regulations,  he  should  be  able 
to  differentiate  them  from  the  State  statutes  and  any  local  dis 
trict  requirements.  He  must  discriminate  between  the  Land 
Department  and  the  courts.  Finally,  he  should  familiarize  him 
self  with  the  specific  requirements  of  the  statutes  of  the  State 
in  which  he  is  operating,  for  unfortunately  the  State  statutes 
are  not  uniform.  Where  the  locality  is  subject  to  district  rules, 
these  also  must  be  obeyed,  though  district  rules  have  generally 
been  abandoned. 


CHAPTER  II 

Public  Land  and  Its  Survey 

All  the  land,  together  with  the  mineral  underneath,  within 
the  United  States  and  including  Alaska,  is  owned  by  the  United 
States  as  a  sovereign  power,  except  that  land  to  which  patent 
or  title  has  been  acquired  from  the  United  States  or  its  prede 
cessors,  or  that  which,  though  unclaimed  by  private  parties, 
never  passed  to  the  Government,  but  remained  in  the  possession 
of  the  individual  States.  This  Government  land,  the  'public 
domain,'  and  including  mines,  is  under  the  jurisdiction,  survey, 
and  disposal  of  the  Land  Department,  or  as  it  is  better  known, 
the  General  Land  Office,  which  is  a  branch  of  the  Department 
of  Interior  and  presided  over  by  the  Commissioner  of  the  Gen 
eral  Land  Office. 

The  public  domain  is  segregated  into  land  districts,  in  which 
are  located  the  local  land  offices  under  charge  of  two  resident 
officers,  the  register  and  the  receiver.  These  offices  are  estab 
lished  that  the  public  may  be  able  to  learn  just  what  public 
land  is  open  to  occupation  and  entry,  what  kind  of  entries  may 
be  made  thereon,  and  to  receive  filings  and  entries.  These 
officers  also  receive  protests  against  entries,  which  may  result 
in  hearings  before  the  register  and  receiver,  who  will  render 
decisions  thereon;  these  decisions  being  subject  to  the  contest 
ants'  right  of  appeal  to  the  Commissioner  of  the  General  Land 
Office,  and  from  his  decision  to  that  of  the  Secretary  of  the 
Interior. 

Closely  associated  with  the  local  land  offices  are  the  offices  of 
the  surveyors-general,  who  have  charge  of  surveying  the  public 
domain  into  townships  and  sections  preliminary  to  its  entry 
by  homesteaders  and  other  claimants  of  public  land  for  agri 
cultural  purposes,  and  the  direction  of  the  deputy  mineral  sur 
veyors  in  the  making  of  patent  surveys  of  mining  claims  neces- 
16 


PUBLIC  LAND  AND  ITS  SURVEY  17 

sary  before  applying  to  the  local  land  office  for  patent  or  title 
to  the  land  embraced  by  the  claims;  also  the  approval  and  official 
filing  of  such  surveys.  The  surveyors-general  are  under  the 
jurisdiction  of  and  report  directly  to  the  General  Land  Office  at 
Washington.  Likewise  closely  associated  with  the  local  land 
offices,  are  the  offices  of  the  Field  Service  or  Field  Division  of 
the  General  Land  Office,  under  the  direction  of  local  Chiefs  of 
Field  Service.  The  employees  of  the  Field  Service  are  generally 
termed  Special  Agents,  and  make  field  investigation  of  all  entries 
of  public  land  and  matters  concerning  the  public  lands,  report 
ing  confidentially  to  the  Commissioner  of  the  General  Land 
Office.  Mineral  entries  and  entries  involving  the  mineral  char 
acter  of  the  land  are  investigated  by  Agents  usually  called  Min 
eral  Inspectors  or  'Practical  Miners,'  who  are  versed  in  land 
and  mineral  law,  and  with  practical  and  technical  experience 
in  mining. 

The  Land  Department,  being  vested  with  the  care  and  dis 
posal  of  the  public  lands,  including  mines,  has  the  authority 
to  formulate  and  enforce  regulations  for  such  care  and  disposal. 
It  also  has  the  authority  to  render  decisions  on  questions  regard 
ing  public  land  over  which  it  may  exercise  control;  but  the 
Land  Department  is  bound  to  act  according  to  and  within  the 
Federal  Statutes  in  all  its  regulations  and  decisions.  The  Land 
Department  does  not  concern  itself  with  any  land  until  it  is 
filed  or  entered  for  patent,  except  in  flagrant  cases  of  the  land 
being  wrongly  occupied  to  the  exclusion  of  bona  fide  appropria- 
tors  or  against  good  public  policy.  It  retains  control  over 
public  land  subject  to  its  care  up  to  the  time  it  issues  patent 
and  passes  the  title  or  ownership  from  the  Government,  after 
which  it  has  lost  its  jurisdiction  to  the  land,  and  all  questions 
thereafter  raised  should  be  taken  into  the  courts.  It  is  almost 
impossible  to  take  questions  affecting  the  character  of  public 
lands,  which  may  be  under  the  consideration  of  the  Land  Depart 
ment,  into  the  courts  before  patent  is  issued  or  refused.  The 
courts  look  with  favor  upon  the  Land  Department  as  a  brother 
tribunal,  and,  though  not  bound  by  its  constructions  of  the 
Statutes,  are  loath  to  interfere.  After  patent  is  issued  or  re 
fused,  the  action  of  the  Land  Department  may  be  attacked  in 


18  MINING  LAW 

the  courts  on  grounds  that  it  exceeded  its  jurisdiction,  acted 
fraudulently,  or  misinterpreted  the  law,  but  not  for  the  con 
tinued  litigation  of  the  facts  that  have  been  or  should  have  been 
presented  to  the  Land  Department.  Since  the  subject  of  mining 
law  is  largely  concerned  with  obtaining  title  to  mineral  land, 
and  this  title  is  obtained  through  and  under  the  supervision 
of  the  Land  Department,  the  miner  should  clearly  understand 
the  functions  and  workings  of  that  department. 

The  States  which  are  spoken  of  as  the  mining-law  States,  for 
the  reason  that  the  mining  law  is  in  daily  use  in  them  and 
that  they  are  generally  assumed  to  be  the  whole  field  of  Amer 
ican  mining  law,  are  California,  Oregon,  Washington,  Idaho, 
Montana,  North  Dakota,  South  Dakota,  Wyoming,  Colorado, 
Utah,  Nevada,  Arizona,  New  Mexico,  and  the  District  of  Alaska. 
It  will  be  noticed  that  they  include,  besides  the  Rocky  Mountain 
and  Pacific  Coast  States,  the  Dakotas  and  Alaska.  Of  the  re 
maining  States,  many  never  had  any  public  domain;  to  others 
the  mining  laws  were  not  extended  or  were  subsequently  re 
pealed.  The  law  has  some  force  and  utility  in  Arkansas,  Florida, 
Louisiana,  Mississippi,  and  parts  of  Oklahoma,  but  owing  to 
the  almost  total  absence  of  public  mineral  land  in  those  States, 
they  will  not  be  considered.  Texas  having  joined  the  United 
States  as  a  sovereign  power,  retained  possession  of  her  unoc 
cupied  unclaimed  land,  enacting  a  State  code  of  mining  laws 
to  govern  them.  For  the  Philippine  Islands  special  mining  laws 
have  been  provided.  The  possessions  of  the  United  States  out 
side  of  Alaska  and  the  Philippines  have  no  mining  laws. 

Besides  knowing  whence  and  how  title  is  derived  to  mineral 
and  other  public  land,  it  is  highly  important  to  know  how 
this  land  is  mapped  and  designated,  and  how  it  is  marked  in 
the  field.  In  making  a  mineral  location  upon  public  domain, 
it  is  usually  not  necessary  to  know  upon  what  section  of  land 
it  is,  or  to  tie  the  location  to  a  land  survey  monument,  possibly 
excepting  placers;  but  with  agricultural  and  other  entries  and 
patents  rapidly  encroaching  on  mineral  lands,  it  is  often  neces 
sary  in  trying  to  keep  clear  of  them,  or  in  the  case  of  disputes, 
to  be  able  to  find  tracts  of  land  in  the  field  by  their  markings. 
In  case  of  a  contest  between  mineral  and  agricultural  claimants, 


PUBLIC  LAND  AND  ITS  SURVEY  19 

each  legal  subdivision  of  40  acres  constitutes  a  unit.  The  Gov 
ernment  is  desirous  that  placer  claims  conform  to  legal  sub 
divisions  whenever  practicable,  in  such  cases  permitting  the 
claims  to  be  entered  for  patent  without  further  survey  or  plat. 
For  these  and  other  reasons  a  knowledge  of  how  public  land 
is  surveyed  and  divided  is  essential. 

*As  a  starting  point  for  the  surveys  a  prominent  landmark 
is  taken  in  different  localities  as  an  'Initial  Point.'  Through 
the  initial  point  a  'Principal  Meridian'  is  laid  off,  running  north 
and  south  and  conforming  to  a  true  meridian,  and  also  a 
'Base  Line'  running  east  and  west  and  conforming  to  a  parallel 
of  latitude  (Fig.  1).  The  correct  method  of  designating  this 
initial  point  is  to  refer  to  the  base  line  and  the  principal 
meridian  that  intersect  at  the  point,  as  Salt  Lake  Base  and 
Meridian,  abbreviated  S.  L.  B.  &  M.;  though  the  general  way 
is  to  refer  to  the  meridian  only,  as  Salt  Lake  Meridian,  abbre 
viated  S.  L.  M.  The  above  is  the  designation  of  the  initial 
point  upon  which  the  land  surveys  of  the  State  of  Utah  are 
based,  the  initial  point  being  in  Salt  Lake  City.  For  the  State 
of  Idaho,  the  Boise  Meridian,  having  its  locus  at  Boise,  Idaho, 
is  used.  California  and  Nevada  make  use  of  the  Mount  Diablo 
and  San  Bernardino  meridians. 

There  are  initiated  from  the  principal  meridian  at  intervals 
of  24  miles,  east  and  west  lines  conforming  to  parallels  of  lati 
tude,  and  similar  to  the  base  line.  These  are  successively  known 
as  'First  Standard  Parallel  North',  'Second  Standard  Parallel 
North',  'First  Standard  Parallel  South',  etc.,  as  these  lines  may 
be  north  or  south  of  the  initial  point  and  base  line.  From  the 
base  line  are  initiated  north  and  south  lines  at  intervals  of  24 
miles,  known  as  'Guide  Meridians'.  Since  all  north  and  south 
lines  converge  toward  the  poles,  these  guide  meridians  are 
started  anew  from  each  standard  parallel  in  contradistinction  to 
the  principal  meridian  which  runs  directly  without  change  to 
the  confines  of  the  area  governed  thereby.  These  lines,  though 
broken  and  displaced  each  24  miles,  are  known  and  numbered 

*From  author's  article,  'Surveying  the  Public  Land  of  the  United 
States/  in  Mining  and  Scientific  Press,  January  29,  1910. 


20 


MINING  LAW 


successively  from  the  principal  meridian,  as  'First  Guide  Merid 
ian  East',  'Second  Guide  Meridian  East'. 

Special  base  lines  and  meridians  have  been  established  to 
govern  lesser  areas  remote  from  the  main  initial  points  where 
it  was  impossible  or  impracticable  to  carry  the  standard  paral 
lels  over  the  mountains.  The  Uintah  Base  and  Meridian,  gov 
erning  the  northeast  part  of  Utah,  is  an  example.  Local  stand 
ard  parallels  or  guide  meridians  have  sometimes  been  established 
where  necessitated. 


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Fig.    1.       DIAGRAM    ILLUSTRATING    DIVISION    OF    LAND    INTO    TOWNSHIPS 


The  tracts,  24  miles  square,  are  subsequently  divided  into 
'Townships',  6  miles  square,  by  east  and  west  lines  intersecting 
north  and  south  lines.  The  townships  in  turn  are  divided  into 


PUBLIC  LAND  AND  if  S  SURVEY          21 

36  tracts,  known  as  'Sections',  each  one  mile  square,  and  con 
taining  640  acres;  these  are  numbered  as  shown  in  the  diagram 
(Fig.  2).  Only  the  exterior  boundaries  of  the  sections  are  run 
by  the  Government,  but  corner  stones  or  monuments  are  placed 
each  half-mile  on  these  lines,  that  the  sections  may  be  readily 
divided  into  'Quarter  Sections'.  Each  quarter  section  is  held 
to  contain  four  square  40-acre  tracts — 'Quarter-Quarters' — the 
smallest  legal  subdivision;  though  the  Government  in  the  case 
of  patenting  placer  claims  conforming  to  the  land  surveys  does 
recognize  and  allow  entry  on  10-acre  tracts,  that  are  the  regu 
lar  subdivisions  of  these  40-acre  subdivisions. 

Any  row,  or  series  of  continuous  townships,  extending  east 
and  west,  is  spoken  of  as  'Townships',  though  the  proper  term 
is  'Tier',  but  the  latter  is  not  used.  Any  row  or  series  running 
north  and  south  is  known  as  a  'Range.'  A  township  in  the 
first  row  of  townships  north  or  south  of  the  base  line  and  initial 
point  or  meridian  is  designated  as  Township  1  North,  or  Town 
ship  1  South,  while  a  township  in  the  second  row  becomes  Town 
ship  2  North,  or  Township  2  South,  etc.  Similarly  the  rows 
of  townships  east  and  west  of  the  principal  meridian  and  the 
initial  point  are  known  as  Range  1  East,  Range  1  West,  Range 
2  East,  Range  2  West,  etc.  By  co-ordinating  these  systems  of 
numbering,  easy  reference  can  be  made  to  any  township.  In 
the  diagram,  the  township  designated  by  A  is  known  as  Town 
ship  2  North,  Range  3  West,  Salt  Lake  Meridian,  and  is  abbre 
viated  T.  2  N.,  R.  3  W.,  S.  L.  M.  Likewise  the  township  indi 
cated  by  B  is  T.  5  N.,  R.  5  W.,  S.  L.  M.,  while  C  is  T.  1  S.,  R.  1  E., 
S.  L.  M. 

The  method  of  surveying  a  township  into  sections,  the  ex 
terior  boundaries  of  the  township  having  been  run,  and  all 
monuments  on  these  lines  having  been  placed,  is  ordinarily  to 
start  from  the  south  boundary  of  the  township  and  close  the 
survey  on  the  east,  north,  and  west  boundaries.  Starting  from 
the  southeast  corner  of  Section  35  on  the  southern  boundary  of 
the  township,  the  surveyor  will  run  a  line  north,  noting  the 
topography  of  the  country  he  passes  over  and  recording  the 
distance  in  chains  of  66  ft,  or  80  to  the  mile.  At  40  chains, 
or  one-half  mile,  he  will  set  a  rough  undressed  stone  or  a 


22  MINING  LAW 

dressed  post,  called  a  'Quarter-Section  Corner'.  This  stone  will 
probably  be  8  by  12  in.  by  2  ft.  long  and  will  be  set  with  two- 
thirds  to  three-quarters  of  its  length  in  the  ground.  If  a  post, 
it  will  be  3  ft.  long  by  3  or  4  in.  square.  On  a  side  parallel 
to  the  direction  the  line  is  being  run  will  be  chiseled  '*4'  if  a 
stone,  or  inscribed  '^S',  and  the  numbers  of  the  sections  it 
stands  for,  if  a  post.  Should  any  trees  over  3  in.  in  diameter 
be  found  within  200  ft.  of  the  corner,  one  in  each  section  will 
be  marked  on  the  side  directly  facing  the  corner  by  being  blazed 
and  having  cut  into  the  blaze  the  initials  B.  T.  and  the  abbre 
viated  section  in  which  the  tree  stands.  These  trees  are  known 
as  'bearing  trees',  and  are  recorded  in  the  surveyor's  notes. 
From  this  corner  the  surveyor  will  continue  north  another  40 
chains,  making  a  full  mile,  where  he  will  place  a  stone  or  post 
for  the  section  corner  common  to  sections  25,  26,  35,  and  36. 
This  monument  should  be  set  with  its  edges  facing  the  cardinal 
points;  on  the  east  corner  should  be  chiseled  or  cut  one  notch 
to  denote  that  it  is  one  mile  from  the  east  boundary  of  the 
township,  while  on  the  south  should  be  one  notch  to  indicate 
that  it  is  one  mile  from  the  south,  boundary.  If  a  post,  it  will 
bear  in  addition  the  sections  for  which  it  stands,  and  the  town 
ship  and  range.  A  mound  of  rock  will  be  raised  beside  the 
monument,  and  any  suitable  trees  blazed  as  bearing-trees  with 
the  initials  B.  T.  and  the  abbreviated  section,  township,  and 
range  in  which  they  stand.  Prom  this  corner  the  surveyor  will 
run  east  on  a  random  or  trial  line,  setting  a  stake  for  a  tem 
porary  quarter-section  corner  at  40  chains.  Running  another 
40  chains,  and  arriving  on  the  east  boundary  of  the  township, 
the  surveyor  measures  and  calculates  his  error  in  bearing  and 
distance  in  striking  the  section  corner  to  sections  25,  30,  31, 
and  36,  that  was  placed  when  the  township  boundaries  were  run. 
Returning  from  this  corner  on  a  true  line  to  the  corner  for 
sections  25,  26,  35,  and  36,  he  sets  permanently,  in  the  proper 
place,  midway  between  the  two  section  corners,  the  quarter- 
section  corner  that  was  temporarily  marked.  From  the  corner 
for  sections  25,  26,  35,  and  36,  the  surveyor  will  run  north  one 
mile  and  east  one  mile,  as  before,  and  continue  in  this  way, 
marking  all  section  corners  on  the  east  and  south  edges  with 


PUBLIC  LAND  AND  ITS  SURVEY  23 

cuts  or  notches  indicating  the  number  of  miles  the  monument 
is  from  the  east  and  south  boundaries  of  the  township.  The 
last  mile  on  the  north  (between  sections  1  and  2)  will  be  run 
in  a  way  similar  to  the  east  and  west  lines,  so  that  the  line 
may  close  on  the  corner  already  in  place  on  the  north  boundary 
of  the  township.  Where  the  north  boundary  of  the  township 
is  a  base  line  or  standard  parallel  (formerly  called  a  'Correction 
Line'),  the  north  line  between  sections  1  and  2  will  be  run  as  a 
true  line  without  reference  to  the  corner  already  existing  on 
the  township  boundary.  A  'Closing  Corner'  will  be  set  where 
the  section  line  intersects  the  standard  parallel  or  base  line 
as  the  closing-corner  of  sections  1  and  2  only.  This  corner 
will  bear  the  letters  C.  C.  on  the  south,  facing  the  township 
it  represents,  and  notches  or  grooves  to  indicate  the  number 
of  miles  it  is  from  the  corners  of  the  township,  in  this  case 
one  on  the  east  and  five  on  the  west.  This  is  the  plan  of  mark 
ing  section  corners  on  township  boundaries.  It  will  be  noticed 
that  notches  on  these  corners  will  always  total  six,  and  are 
on  the  opposite  faces  of  the  monuments  instead  of  on  edges 
adjacent  and  quartering  toward  each  other,  as  in  the  case  of 
section  corners  within  townships.  For  illustration,  the  corner 
to  sections  19,  24,  25-,  and  30  on  the  township  boundary  line 
will  have  two  notches  on  the  south  face  and  four  on  the  north. 

All  lines  will  be  carried  from  the  southern  to  the  northern 
boundary  in  this  way.  The  closing  on  the  west  boundary  will 
be  done  by  means  of  trial  or  random  lines,  just  as  the  north 
and  east  boundaries.  Closing-corners  are  placed  in  the  interior 
of  a  township  only  when  it  has  been  surveyed  in  part  at  differ 
ent  times,  and  it  is  impossible  to  close  within  proper  limits  the 
lines  of  the  later  survey  upon  the  corners  of  the  earlier  one. 

A  township  corner  is  a  monument  marking  the  corner  of  a 
township.  Due  to  the  necessity  of  making  corrections  along 
the  standard  parallels  to  correct  the  convergence  of  the  merid 
ians  or  of  joining  old  surveys  to  new  ones,  a  township  corner 
may  be  the  corner  of  from  one  to  four  townships.  There  are 
certain  methods  of  marking  corners  to  show  this  or  other  facts, 
but  the  details  would  only  be  confusing  to  any  but  surveyors. 
A  corner  common  to  four  townships  bears  six  notches  on  each 


24  MINING  LAW 

of  the  four  corners  of  the  post  or  stone.  One  common  to  two 
townships,  or  referring  to  one  alone,  is  marked  by  six  notches 
on  two  edges  facing  toward  these  townships.  Township  corners 
on  base  lines  or  standard  parallels  bear  six  grooves  on  three 
faces.  Township  corners  that  are  closing  township  corners  bear 
the  letters  C.  C.,  and  three  sets  of  six  notches.  Such  corners 
must  necessarily  be  placed  along  the  standard  parallels  when 
the  24-mile  tracts  are  surveyed  into  townships;  they  also  occur 
in  joining  different  surveys.  When  it  is  impossible  to  place 
a  corner  in  the  proper  place  due  to  inaccessibility,  a  corner  is 
placed  on  the  line  as  near  the  proper  point  as  practicable;  this 
is  called  a  'Witness  Corner',  and  bears  in  addition  to  the  usual 
markings  the  letters  W.  C.  Where  rock  is  not  available  for 
a  mound,  pits  may  be  dug  and  the  earth  raised  as  a  mound. 
Stone  monuments  and  mounds  of  rock  are  to  be  preferred  to 
wooden  posts  and  earth  mounds,  as  being  more  substantial. 
Recently  new  corners  have  been  adopted,  being  iron  pipes  sur 
mounted  by  brass  caps,  similar  to  the  bench  marks  of  the 
ideological  Survey.  Mounds  and  pits  will  accompany  them  as 
with  the  old-style  corners.  Trees  should  be  marked  by  the  sur 
veyor;  those  intersecting  the  line  by  two  opposite  blazes  facing 
the  directions  of  the  line;  those  within  a  half  chain  by  two  blazes 
quartering  toward  the  line.  Brush  should  be  cut  to  indicate 
the  line. 

By  the  method  of  surveying,  all  the  error  in  measurement 
is  thrown  on  the  north  and  west  boundaries  of  the  townships; 
for  this  reason  the  outside  quarter  sections  on  these ,  boundaries 
are  reported  and  sold  according  to  the  measurements  returned 
by  the  surveyor,  the  other  tracts  being  presumed  to  be  of  full 
area.  This  error  is  platted  into  the  outside  tier  and  range 
of  40-acre  tracts  on  these  boundaries.  These  particular  sub 
divisions  are  called  'lots',  and  in  these  sections  are  numbered 
as  shown  in  the  diagram  (Fig.  2).  Any  tract  of  the  40-acre 
subdivision  class  that  contains  more  or  less  than  40  acres  as 
officially  described  is  called  a  lot.  Also,  any  part  of  a  40-acre 
subdivision  that  may  be  cut  off  and  left  remaining  by  a  piece 
of  land,  the  title  of  which  has  passed  from  the  Government, 
is  called  a  lot.  There  can  be  no  regularity  in  numbering  such 


PUBLIC  LAND  AND  ITS  SURVEY 


25 


lots  as  can  be  seen  in  the  case  of  the  lots  made  in  sections  9 
and  16  of  the  diagram,  by  the  issuing  of  patent  to  the  group 
of  mining  claims  indicated. 


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Sec.  36 

i 

W. 

Fig.    2.       DIAGRAM    ILLUSTRATING    DIVISION    INTO    SECTIONS    AND    SUBDI 
VISIONS,    ALSO    METHOD   OF   MARKING    CORNERS 


Though  the  Government  does  not  subdivide  sections,  it  issues 
the  following  instructions  for  such  procedure:  First,  determine 
the  boundaries  of  the  section  by  the  established  corners,  then 
divide  into  quarter-sections  by  running  intersecting  lines  from 
the  opposite  quarter-section  corners.  To  still  further  reduce 
by  dividing  the  quarter-sections  into  quarter-quarters  (40-acre 
subdivisions),  locate  quarter-quarter  corners  at  points  midway 


26  MINING  LAW 

between  the  section  and  quarter-section  corners,  likewise  between 
the  quarter-section  corners  and  the  centre  of  the  section  as 
determined  in  dividing  into  quarter  sections.  Then  run  inter 
secting  lines  from  these  quarter-quarter  corners.  In  subdividing 
the  quarter-sections  on  the  last  half  mile  of  the  lines  closing  on 
the  north  or  west  boundaries  of  the  township,  where  the  errors 
in  measurement  are  thrown,  the  inside  rows  of  quarter-quarters 
are  made  exact  by  measuring  20  chains  along  the  section  lines 
from  the  quarter-section  corners,  the  outside  rows  of  quarter- 
quarters  becoming  lots  of  various  areas. 

The  nomenclature  of  the  subdivision  of  a  section  is  simple. 
In  the  diagram  (Fig.  2)  the  tract  indicated  by  G  is  the  southeast 
quarter  of  section  23,  abbreviated  the  SE.  ^4  sec.  23;  E  is  the  west 
half  of  the  southwest  quarter,  abbreviated  the  W.  %  SW.  ^4 
sec.  23;  the  quarter-quarter  D  is  the  northwest  quarter  of  the 
northwest  quarter,  abbreviated  the  NW.  %  NW.  14  sec.  23;  F 
is  the  southeast  quarter  of  the  northeast  quarter,  abbreviated 
the  SE.  14  NE.  %  sec.  23.  A  10-acre  placer  claim  conforming 
to  legal  subdivisions  and  situated  in  the  extreme  northwest 
corner  of  G  would  be  the  NW.  }4  NW.  ^  SE.  }4  sec.  23. 

After  completing  the  survey,  the  surveyor  will  file  a  copy  of 
his  field  notes  with  the  surveyor-general,  who  binds  them  in 
a  book  open  for  inspection  by  all  upon  application.  The  sur 
veyor  also  files  a  map  of  the  township,  which  is  open  for  in 
spection  and  tracing.  These  maps  are  made  by  entering  on 
the  plat  the  topography  of  the  section  lines  as  found  in  the 
field  notes  of  the  surveyor  and  connecting  these  according  to 
the  sketches  in  the  surveyor's  field  book.  The  fact  that  the 
interiors  of  the  sections  are  only  sketched  in,  and  consequently 
creeks,  roads,  etc.,  are  often  wrongly  connected  or  misplaced  in 
the  interior  of  a  section,  should  be  remembered  when  trying 
to  fit  the  known  topography  of  a  section  to  the  map  of  the 
same.  The  topography  of  the  section  lines  should  be  accurate, 
and  generally  is. 

After  the  notes  and  plat  have  been  filed  with  the  surveyor- 
general,  the  Government  sends  an  examiner  who  inspects  the 
survey,  measuring  a  number  of  the  lines  and  endeavoring  to 
determine  if  the  survey  has  been  properly  made,  marked,  and 


PUBLIC  LAND  AND  ITS  SURVEY  27 

returned.  In  case  errors  are  found,  the  surveyor  is  required 
to  return  and  correct  his  work;  this  frequently  happens.  The 
errors  and  omissions  of  the  surveyor  may  consist  in  initiating 
his  surveys  from  wrong  corners,  in  putting  up  poor  corners, 
in  failing  to  mark  his  line,  or  in  willfully  neglecting  to  run 
lines  or  set  corners  in  a  difficult  part  of  the  country  where  it 
is  expected  that  the  examiner  will  not  go.  Errors  in  measure 
ment  and  alignment  are  sometimes  found,  though  these  should 
not  occur,  since  by  the  method  of  surveying  there  is  a  constant 
check  on  the  work.  At  first,  previous  to  the  'eighties',  examina 
tions  of  surveys  were  not  made,  but  so  many  irregularities  re 
sulted,  willful  and  otherwise,  that  all  are  now  inspected.  Gross 
irregularities  are  often  found  after  a  survey  has  been  accepted, 
such  as  a  corner  being  a  quarter  of  a  mile  from  its  proper 
point,  but  after  a  survey  has  been  accepted  the  corners  hold 
and  cannot  be  changed. 

All  lines  do  not  run  due  north  and  south  or  east  and  west, 
or  the  prescribed  theoretical  distance.  Many  of  them  vary  in 
small  amounts,  and  occasionally  some  vary  greatly  for  a  short 
distance.  This  is  only  done  when  necessary  to  close  surveys, 
and  is  fully  shown  in  the  notes  and  plats. 

With  the  passing  of  time  the  corners  or  monuments  disappear. 
Men  may  intentionally  or  unintentionally  remove  them;  cattle 
may  tear  them  down ;  the  elements  and  the  various  forces  that 
change  the  surface  of  the  earth  may  obliterate  them.  Anyone 
who  has  observed  the  condition  of  patented  claim-stakes  on 
a  steep  hillside  subject  to  much  snow  can  understand  how  these 
corners  disappear.  Corners  that  have  disappeared  may  be  re 
stored  by  running  lines  from  existing  corners -in  the  vicinity, 
or  a  re-survey  of  a  township  or  locality  may  be  ordered  to  be 
made,  starting  from  known  corners  and  following  the  notes  of 
the  old  survey. 


CHAPTER  III 

Where  Locations  May  Be  Made 

R.  S.,  SECTION  2319.  All  valuable  mineral  deposits  in 
lands  belonging  to  the  United  States,  both  surveyed  and 
unsurveyed  are  hereby  declared  to  be  free  and  open 
to  exploration  and  purchase,  and  the  lands  in  which  they 
are  found,  to  occupation  and  purchase,  by  citizens  of  the 
United  States  and  those  who  have  declared  their  inten 
tion  to  become  such,  under  regulations  prescribed  by  law, 
and  according  to  the  local  customs  or  rules  of  miners  in 
the  several  mining  districts,  so  far  as  the  same  are  appli 
cable  and  not  inconsistent  with  the  laws  of  the  United 
States. 

Only  public  domain  is  open  to  mineral  location,  and  there 
are  parts  even  of  it  that  are  not  open  to  location,  though  it 
is  not  necessarily  true  that  only  unoccupied  unclaimed  public 
land  can  be  located  as  mining  claims.  It  is  the  policy  of  the 
Government  that  the  public  land  shall  be  put  to  its  most  useful 
purpose,  and  in  accordance  with  this  policy,  the  Land  Depart 
ment  will  receive  a  protest,  and,  under  proper  conditions  and 
satisfactory  representations,  will  undertake  to  determine  for 
what  purpose  the  land  is  most  valuable,  and  will  render  judg 
ment  accordingly,  up  to  the  time  the  land  leaves  its  jurisdiction 
by  the  issuing  of  patent,  or  until  by  some  specific  act  of  con 
gressional  or  presidential  legislation,  the  land  is  removed  from  its 
jurisdiction.  However,  the  Land  Department  will  not  undertake 
any  determination  of  the  rights  of  rival  claimants  under  differ 
ent  classes  of  possession  or  entry,  until  patent  is  asked  for 
the  land  in  question,  except  in  flagrant  cases  of  the  land  being 
occupied  in  bad  faith  to  the  detriment  of  good  public  policy 
and  the  exclusion  of  ~bona  fide  locators  and  entrymen. 

Land  to  which  patent  has  been  obtained,  or  which  has  been 
approved  or  certified  to  the  applicant  by  the  Government — 

28 


WHERE  LOCATIONS  MAY  BE  MADE  29 

which  is  the  same  as  passing  title — cannot  be  entered  upon  for 
location,  except  the  patent  be  broken.  The  Government  will 
not  undertake  to  break  a  patent  of  any  kind,  except  on  the 
clearest  and  strongest  proof  of  fraud  or  serious  error  of  law, 
proceedings  to  be  initiated  within  six  years  of  issuing  patent 
as  prescribed  by  the  Statute  of  Limitations,  "that  suits  to  vacate 
and  annul  any  patent  *  *  hereafter  issued,  shall  be  brought 
within  six  years  after  date  of  issuing  such  patent."  Innocent 
purchasers  will  generally,  if  not  always,  be  protected,  though 
the  Government  may  institute  suit  against  the  original  and 
defrauding  owner  or  claimant  for  the  value  of  the  land. 

No  location  can  be  made  upon  an  Indian  reservation  unless 
allowed  by  a  specific  Act  of  Congress,  but  a  location  existing 
at  the  time  the  reservation  was  created  and  closed  to  further 
locations,  has  been  upheld  by  the  Land  Department  as  being 
a  part  of  the  public  domain  excluded  from  the  reservation,  and, 
as  such,  susceptible  of  being  relocated,  should  the  original  locator 
abandon  it. 

Military  reservations  and  national  parks  come  under  the  same 
head  as  Indian  reservations,  and  the  same  principles  may  be 
said  to  govern. 

Locations  can  be  made  within  Forest  Reserves,  or  the  National 
Forests,  with  the  same  freedom  that  any  public  land  lawfully 
can  be  entered  upon  for  that  purpose. 

Lands  withdrawn  for  power-sites,  reservoirs,  etc.,  were  for 
merly  invariably  closed  to  location,  especially  where  locations 
might  interfere  with  the  purposes  of  the  withdrawal.  Though 
the  Land  Department  said  that  a  location  made  prior  to  the 
withdrawal  would  be  upheld,  if  "a  valid  one,  that  is,  founded 
on  actual  discovery  by  the  locator  of  a  valuable  deposit  of  min 
eral  within  the  limits  of  the  claim,  and  maintained  in  accord 
ance  with  the  mining  laws  and  regulations  applicable",  it  also 
said  that  the  withdrawal  of  land  for  irrigation  or  reclamation 
projects  did  not  withdraw  it  from  mineral  location.  In  gen 
eral,  it  was  considered  that  the  miner  making  a  location  on 
a  withdrawn  area  was  entitled  to  a  preferred  right  to  make  a 
valid  location  upon  the  removal  of  the  withdrawal,  if  no  greater 
right.  Locations  have  been  made  on  this  principle  upon  Indian 


30  MINING  LAW 

and  military  reservations,  but  it  is  a  poor  method  to  pursue, 
for  the  authorities  are  usually  antagonized  by  the  trespassing 
of  the  locator.  However,  the  land-withdrawal  law  passed  by 
Congress  June  25,  1910,  now  permits  mineral  locations  upon 
withdrawn  areas  and  clearly  defines  the  present  rights  as 
follows: 

ACT  OF  CONGRESS.  SECTION  1.  That  the  President 
may,  at  any  time  in  his  discretion,  temporarily  withdraw 
from  settlement,  location,  sale,  or  entry  any  of  the  public 
lands  of  the  United  States,  and  the  District  of  Alaska, 
and  reserve  the  same  for  water-power  sites,  irrigation, 
classification  of  lands,  or  other  public  purposes  to  be 
specified  in  the  orders  of  withdrawals,  and  such  with 
drawals  or  reservations  shall  remain  in  force  until  re 
voked  by  him  or  an  Act  of  Congress. 

SEC.  2.  That  all  lands  withdrawn  under  the  provisions 
of  this  Act  shall  at  all  times  be  open  to  exploration,  dis 
covery,  occupation,  and  purchase,  under  the  mining  laws 
of  the  United  States,  so  far  as  the  same  apply  to  minerals 
other  than  coal,  oil,  gas,  and  phosphates.  Provided,  that 
the  rights  of  any  person  who,  at  the  date  of  any  order  of 
withdrawal 'heretofore  or  hereafter  made,  is  a  bona  fide 
occupant  or  claimant  of  oil  or  gas-bearing  lands,  and 
who,  at  such  date  is  in  diligent  prosecution  of  work  lead 
ing  to  discovery  of  oil  or  gas,  shall  not  be  affected  or 
impaired  by  such  order,  so  long  as  such  occupant  or 
claimant  shall  continue  in  diligent  prosecution  of  said 
work.  And  provided  further,  that  this  Act*  shall  not  be 
construed  as  a  recognition,  abridgment,  or  enlargement 
of  any  asserted  rights  or  claims  initiated  upon  any  oil 
or  gas-bearing  lands  after  any  withdrawal  of  such  lands 
made  prior  to  the  passage  of  this  Act.  ***** 

Tide-lands  are  not  such  public  lands  as  locations  may  be 
made  upon,  though  beaches  have  been  mined  by  special  per 
mission.  Likewise,  lands  lying  under  navigable  rivers  are  not 
public  lands  within  the  meaning  of  the  mining  laws. 

A  location  can  be  made  upon  the  land  of  a  homestead  or 
other  agricultural  filing  or  entry  of  public  land,  if  patent  has 
not  yet  been  issued  and  presuming  that  the  location  can  be 
made  peaceably  and  without  trespass.  The  courts  have  always 
declared  and  upheld  that  a  valid  location  cannot  be  made  fraud- 


WHERE  LOCATIONS  MAY  BE  MADE  31 

ulently,  clandestinely,  forcibly,  or  by  trespass.  Just  what  acts 
or  conditions  may  be  construed  as  coming  under  the  above  de- 
barment,  varies  with  the  circumstances.  The  aim  is  to  prevent 
breaches  of  peace  and  homicides.  Where  the  agricultural  claim 
ant  prevents  a  location  from  being  made,  and  also  where  the 
location  is  placed  but  not  excepted  from  the  homestead  entry, 
protest  should  be  made  to  the  local  land  office  asking  that  the 
ground  in  question  be  declared  mineral  and  removed  from  the 
homestead  entry.  In  the  hearing  or  contest  before  the  register 
and  receiver  of  the  local  land  office  as  a  result  of  the  protest, 
the  question  to  be  determined,  and  the  one  on  which  judgment 
will  be  rendered,  is,  for  which  is  the  land  more  valuable,  min 
eral  or  agricultural  purposes?  Protest  that  all  or  part  of  a 
homestead  or  other  agricultural  filing  is  mineral  in  character 
and  more  valuable  for  mineral  than  other  purposes,  may  be 
made  up  to  the  time  patent  actually  issues,  when  based  upon 
mineral  discovered  before  the  issuance  of  the  final  certificate 
by  the  receiver  of  the  local  land  office  as  a  result  of  the  sub 
mission  of  'final  proof  by  the  agricultural  claimant  that  he 
has  complied  with  the  law  and  is  entitled  to  receive  patent. 
The  burden  of  proof  in  contest  cases  between  mineral  and  agri 
cultural  claimants  will  be  on  the  second  entryman  (a  home 
stead  or  other  agricultural  application  may  also  be  filed  upon 
ground  held  by  mineral  location)  in  accordance  with  the  fol 
lowing  rule:  The  land  is  carried  upon  the  plat  books  of  the 
local  land  office  as  mineral,  agricultural,  or  other  land  according 
to  the  designation  given  by  the  deputy  surveyor  who  surveyed 
it  into  sections.  While  the  classification  is  official,  it  is  only 
the  general  opinion  of  the  surveyor,  and  has  no  other  weight 
than  to  throw  the  burden  of  proof  one  way  or  the  other.  When 
a  homestead  or  nonmineral  application  is  accepted  by  the  local 
land  office  on  a  tract  of  land  classified  by  the  surveyor  as  min 
eral,  it  now  gives  the  tract  a  new  classification  as  being  agri 
cultural  or  other,  and  any  locator  of  a  mining  claim  will  have 
the  burden  of  proof  of  overcoming  the  agricultural  or  other 
classification,  no  matter  whether  his  location  was  made  before 
or  after  the  homestead  application.  Where  the  land  has  been 
returned  as  nonmineral  by  the  surveyor,  a  mineral  location  does 


32  MINING  LAW 

not  give  it  a  mineral  classification,  since  the  land  office  has 
no  knowledge  of  mineral  locations,  and  if  the  matter  is  brought 
to  their  attention  they  have  no  positive  information  as  to  the 
exact  ground  in  conflict;  also,  a  mineral  location  is  initiated 
so  easily,  and  is  often  so  transitory  in  character,  that  to  allow 
it  to  overthrow  a  subsisting  official  classification  would  cause 
endless  trouble  and  confusion.  It  requires  an  application  for 
patent  to  the  location  to  overthrow  the  previous  nonmineral 
classification  and  throw  the  burden  of  'proving  off'  the  mineral 
on  any  contesting  agricultural  or  other  nonmineral  applicant 
who  attempts  to  file  an  entry,  or  who  files  a  protest  after  the 
application  for  mineral  patent. 

Each  legal  subdivision  of  40  acres  is  considered  as  a  unit 
for  most  purposes,  though  in  connection  with  placer  locations 
10  acres  is  recognized.  If  a  mineral  location  is  allowed  to 
remain  upon  a  tract  as  the  result  of  a  contest,  the  whole  40- 
acre  subdivision  is  removed  from  the  agricultural  entry,  though 
by  having  survey  made,  the  mineral  ground  removed  from  the 
tract,  and  official  recognition  made  of  the  lot  remaining,  the 
agricultural  entry  may  be  extended  to  include  the  lot. 

Because  a  tract  has  once  been  classified  as  the  result  of  a 
hearing  or  contest,  does  not  prevent  the  asking  of  a  new  hearing 
and  a  new  classification  based  on  new  and  subsequent  develop 
ments.  The  result  of  a  land  office  hearing  or  contest  does  not 
give  the  land  to  the  winning  contestant;  it  only  classifies  the 
land  and  removes  the  protest,  so  that  he  may  now  proceed 
unrestricted  to  patent  in  the  usual  way  or  continue  to  hold 
possession  as  before.  After  agricultural  patent  has  been  ob 
tained,  no  location  of  the  land  can  be  made,  except  the  patent 
be  broken  on  grounds  of  fraud  or  error  of  law. 

It  has  been  the  custom  of  the  Government  to  grant  the  States 
and  reserve  for  the  Territories  a  certain  section  or  sections  of 
land  in  each  township,  usually  16,  or  16  and  36,  and  in  some 
cases  2  and  32  additionally,  to  be  sold  for  the  benefit  of  the 
schools  and  other  public  purposes  of  the  State.  The  title  of 
these  school  sections  passed  to  the  State  when  admitted  to 
the  Union,  or  at  the  time  of  the  granting  Act,  if  the  land  was 
already  surveyed  into  sections.  If  the  sections  are  surveyed  at 


WHERE  LOCATIONS  MAY  BE  MADE  33 

a  later  date,  they  pass  to  the  State  on  the  approval  of  the  sur 
vey.  If  these  sections  are  known  to  be  valuable  for  mineral 
at  the  time  title  should  pass  to  the  State,  this  title  is  withheld 
by  the  implied  terms  of  the  grant,  and  remains  in  the  United 
States  as  reserved  mineral  land.  The  attitude  of  the  different 
States  varies  on  the  subject  of  locating  or  prospecting  for 
mineral  on  State  land,  but  generally  a  liberal  view  is  taken, 
with  the  idea  of  encouraging  the  mining  industry.  Where  the 
land  is  purchased  from  the  State,  the  purchaser  takes  it  subject 
to  the  limitations  of  the  grant  to  the  State;  consequently,  he 
is  not  entirely  safe  from  having  ground  which  was  known  to 
be  of  mineral  character  at  time  title  passed  to  the  State,  en 
tered  upon  and  patented  away  from  him  as  mining  ground,  not 
withstanding  that  his  patent  obtained  from  the  State  is  sup 
posed  to  cover  all  the  ground.  Where  the  mineral  character 
of  the  land  has  been  discovered  since  the  title  passed  to  the 
State,  the  land  cannot  be  located  upon  unless  it  is  known  that 
the  State  or  its  grantee  will  give  their  consent;  such  land 
should  be  purchased  from  the  State  or  its  grantee.  In  asking 
for  patent  to  a  mining  claim  upon  one  of  these  original  school 
sections,  the  applicant  must  be  prepared  to  show,  should  the 
State  or  its  grantee  protest  against  the  allowance  of  the  patent, 
that  the  land  was  known  mineral  land  at  date  title  should 
have  passed  to  the  State,  and  that  at  the  present  time  the 
ground  sought  to  be  patented  as  a  mining  claim  is  more  valuable 
for  mineral  than  for  any  other  purpose. 

To  reimburse  the  State  for  lands  lost  to  it  through  prior 
occupation  or  by  reason  of  the  mineral  character  of  the  land, 
also  to  cover  floating  grants  to  the  State,  it  is  allowed  to  select 
other  lands  called  'lieu',  'indemnity',  or  'selection'  lands.  These 
must  be  nonmineral  in  character  and  come  under  practically 
the  same  rules  as  homestead  entries,  in  that  locations  may  be 
made,  the  character  determined,  or  the  allowance  of  the  entry 
protested  against,  at  any  time  up  to  the  approval  and  certification 
of  the  entry  to  the  State  by  the  General  Land  Office.  After  the 
approval  and  certification  of  these  lands,  they  cannot  be  entered 
upon  for  location,  whether  known  to  be  mineral  in  character 
before  the  allowance  of  patent  or  otherwise. 


34  MINING  LAW 

In  the  railroad  grants  the  Government  has  included  with  the 
rignt-of-way  strip  all  the  mineral,  except  that  of  pre-existing  and 
valid  locations.  In  the  alternate  or  original  sections  granted  the 
railroads,  the  grants  impliedly  or  otherwise  reserved  the  min 
eral  lands,  with  the  exception  of  coal  and  iron  in  some  cases. 
While  the  railroad  company  has  title  to  these  under  its  grant, 
claims  can  be  located  upon  any  of  this  land  up  until  it  is  patented 
under  the  railroad  grant,  whether  the  mineral  was  known  or 
unknown  at  the  time  the  grant  attached.  After  patent  is  issued 
to  a  tract  of  land  under  the  railroad  grant,  no  future  discovery 
of  mineral  will  authorize  or  allow  a  mineral  location,  but  suit 
can  be  brought  through  and  by  the  U.  S.  on  mineral  known  be- 
loie  issuance  of  patent  to  cancel  the  agricultural  patent  and  thus 
throw  the  land  open  to  location.  Such  suits  must  be  brought 
within  six  years  of  the  issuance  of  patent  as  prescribed  by  the 
Statute  of  Limitations,  while  strong  proof  of  the  known  mineral 
character  of  the  land  at  time  patent  was  issued  and  its  high 
value  as  mineral  land  must  be  made. 

By  the  terms  of  some  of  the  Mexican  grants  the  mineral  land 
was  reserved  and  title  now  remains  in  the  United  States;  in 
others  it  was  not  so  reserved.  Each  case  should  be  investigated. 

Townsites  upon  public  lands  of  a  mineral  character  are  pro 
vided  for  by  the  Statutes.  Because  of  the  somewhat  conflicting 
Acts  and  decisions,  and  the  variety  of  conditions  met  with,  the 
law  is  not  entirely  clear,  but  the  following  are  the  general 
principles.  The  law  contemplates  giving  titles  to  lots  of  land 
occupied  for  business  or  residence  purposes,  but  with  the  right 
to  mine  paramount  to  other  occupation  or  use  of  the  land. 
Consequently,  the  law  purposes  that  mining  claims  valid  by  reason 
of  a  mineral  discovery  prior  to  occupation  of  the  land  for 
townsite  purposes,  are  to  be  reserved  from  townsite  patent;  like 
wise,  but  to  a  lesser  extent,  a  valid  location  made  after  town- 
site  occupation,  but  prior  to  the  issuance  of  townsite  patent,  will 
be  protected.  The  status  of  locations  made  after  issuing  of 
townsite  patent  and  upon  ground  known  to  be  valuable  for 
mineral  before  the  issuance  of  patent  is  more  doubtful,  but  gen 
erally  they  can  be  sustained  and  perfected  to  mineral  patent. 
Locations  made  and  based  on  a  mineral  discovery  made  after 


WHERE  LOCATIONS  MAY  BE  MADE  35 

the  issuing  of  townsite  patent  and  upon  ground  not  known  as 
mineral  ground  in  a  convincing  way  at  time  of  issuing  such 
patent,  cannot  be  sustained. 

Locations  limited  to  being  for  gold,  silver,  cinnabar,  copper, 
or  coal  can  be  made  upon  land  filed  upon  under  a  Timber  and 
Stone  entry  up  to  the  time  patent  is  issued,  just  as  in  the 
case  of  homestead  entries. 

It  will  be  noted  that  mineral  locations  are  to  be  made  on 
mineral  lands  only,  and  the  question  arises,  what  is  mineral 
land?  Mineral  land  is  land  more  valuable  for  its  mineral  con 
tents  than  for  any  other  purpose.  The  mere  appearance  of  min 
eral  is  not  sufficient  to  give  the  land  a  mineral  classification, 
if  there  are  not  substantial  and  lucid  reasons  for  believing  that 
valuable  mineral  deposits  may  be  eventually  opened.  Again, 
the  absence  of  mineral  indications  will  not  give  the  land  a 
nonmineral  classification,  if  it  is  within  an  ore-bearing  zone 
or  in  a  continuation  of  known  and  proved  ore-bearing  forma 
tions.  The  extent  of  the  mineralization  required  to  sustain  a 
mineral  location  varies  with  the  conditions.  In  the  case  of 
a  contest  between  two  mineral  claimants,  very  little  evidence 
of  mineralization  may  be  required,  whereas  in  a  contest  between 
an  agricultural  and  a  mineral  claimant,  the  evidence  must  be 
more  conclusive.  In  the  latter  case,  while  the  comparative 
value  of  the  land  for  agricultural  or  mining  purposes  determines 
the  result,  the  principal  and  usually  most  weighty  question  is, 
would  a  prudent  and  experienced  miner  or  prospector  feel  justi 
fied  or  willing  to  spend  his  labor  or  money  in  trying  to  develop 
a  valuable  mineral  deposit  on  the  land? 

To  further  understand  what  is  mineral  land  it  is  necessary 
to  know  what  is  mineral  within  the  meaning  of  the  land  and 
mining  laws.  The  Land  Department  has  long  held  that  "what 
ever  is  recognized  as  a  mineral  by  the  standard  authorities  on 
the  subject,  where  the  same  is  found  in  quantity  and  quality 
[sufficient]  to  render  the  land  sought  to  be  patented  more  valua 
ble  on  this  account  than  for  purposes  of  agriculture,  should 
be  treated  by  this  office  as  coming  within  the  purview  of  the 
mining  Act  of  May  10,  1872."  The  word  mineral  in  the  above 
has  been  construed  to  mean  substance  both  metallic  and  non- 


36  MINING  LAW 

metallic,  and  to  include  among  all  earthy  substances  and  con 
stituents  of  the  earth's  crust,  salt,  phosphate,  gas,  the  various 
forms  of  petroleum,  and  hydrocarbons.  There  are  conflicting 
opinions  regarding  such  things  as  stone,  sand,  and  gravel.  It 
will  be  seen  that  practically  all  land  would  be  mineral  land 
were  it  not  for  the  proviso,  "where  the  same  is  found  in 
quantity  and  quality  sufficient  to  render  the  land  *  *  *  more 
valuable  on  this  account  than  for  the  purposes  of  agriculture." 
This  principle  is  applied  in  the  case  of  land  containing  a 
deposit  of  limestone,  building  stone,  or  similar,  in  which  the 
deposit  is  of  more  value  than  the  surface  is  for  agricultural 
purposes. 

Land  which  has  been  classified  as  nonmineral  by  the  land 
surveyor,  can  be  located  upon  as  stated  before.  Land  classified 
or  withdrawn  pending  classification  as  coal,  oil,  gas,  phosphate, 
or  other  land,  can  be  located  upon  for  other  minerals,  though 
it  will  be  under  the  implied  protest  of  the  Land  Department 
when  the  indications  of  good  faith  are  lacking,  which  may  throw 
a  strong  showing  of  proof  upon  the  locator,  should  his  location 
ever  be  questioned.  Protest  may  be  entered  against  the  classi 
fication  of  the  land  by  the  Land  Department  as  a  result  of 
field  examination  by  its  experts  or  other  governmental  experts, 
and  a  hearing  may  be  asked  before  the  register  and  the  receiver 
of  the  local  land  office  to  present  evidence  to  overthrow  the 
classification.  A  second  hearing  can  be  asked  where  new  and 
important  developments  have  occurred  subsequent  to  the  first 
hearing.  An  appeal  from  the  decision  of  the  local  land  office 
on  a  hearing  can  be  taken  to  the  Commissioner  of  the  General 
Land  Office  on  grounds  of  error,  etc.  A  further  appeal  from 
his  decision  can  be  taken  to  the  Secretary  of  the  Interior.  Or 
it  may  be  carried  into  the  courts  on  grounds  of  fraud  or  gross 
misinterpretation  of  the  law  by  the  Land  Department;  such 
proceedings  seldom,  if  ever,  occur  before  patent  is  issued  or 
refused.  The  substance  is  that  there  is  no  hard  and  fast  class 
ification,  but  that  the  Land  Department  will  at  all  times,  while 
patent  is  being  asked  for  a  tract  of  land,  undertake  to  determine 
for  what  the  land  is  most  valuable  and  give  entries  for  that 
purpose  the  preference. 


WHERE  LOCATIONS  MAY  BE  MADE  37 

Locations  cannot  lawfully  be  made  or  perfected  to  patent  for 
purposes  or  uses  foreign  to  those  of  mining  or  the  development 
of  mineral.  Formerly  many  locations  were  made  to  hold  ground 
containing  springs,  or  good  for  grazing,  power-sites,  timber,  etc. 
Under  the  present  rigid  field  examination  before  approving  the 
entry  for  patent,  such  'bluff'  locations  cannot  be  patented,  though 
they  may  remain  as  locations  until  the  interests  of  public  policy 
or  the  protest  of  some  one  with  a  better  right  to  the  land  causes 
their  removal. 


CHAPTER  IV 

Who  May  Make  Locations 

Section  2319  of  the  Revised  Statutes  says  that  locations  may 
be  made  and  patents  obtained  "by  citizens  of  the  United  States 
and  those  who  have  declared  their  intention  to  become  such." 
It  would  be  inferred  from  this  that  an  alien  could  not  make 
or  be  protected  in  a  mineral  location,  but  the  consensus  of  opinion 
is  that  he  can  make  a  location  and  will  be  protected  against 
all  except  the  United  States.  The  United  States  can  be  expected 
not  to  dispossess  an  alien  of  his  location,  except  for  some  other 
vital  reason,  but  no  alien  can  be  a  party  to  an  application  for 
mineral  patent  for  the  reason  that  with  the  application  is 
required  a  proof  of  citizenship.  Beyond  this,  his  rights  will 
practically  be  unquestioned,  with  the  possible  exception  of  where 
they  are  curtailed  by  State  statutes,  or  where  he  stands  as  an 
adverse  claimant  in  a  suit  against  a  patent  application.  An 
alien  who  has  located  a  claim  may,  by  declaring  his  intention 
of  becoming  a  citizen,  have  his  rights  dated  back  to  the  time 
of  the  location.  An  alien  may  purchase  or  sell  a  location  or 
a  patented  claim  without  anticipating  trouble. 

A  corporation  chartered  in  the  United  States  may  make  mining 
locations  the  same  as  an  individual,  the  corporation  being  con 
sidered  as  a  single  individual.  Foreign  corporations,  those 
organized  outside  of  the  United  States,  are  aliens,  and  if  they 
have  rights,  they  are  even  less  than  those  of  the  individual 
alien. 

Married  and  single  women,  minors,  and  even  infants,  may 
locate  claims  or  have  claims  located  for  them.  A  location  may 
be  made  by  an  agent  who  has  been  authorized  to  do  so,  or 
an  unauthorized  location  may  be  subsequently  accepted  and 
ratified.  The  authorization  and  ratification  may  be  verbal.  An 
unauthorized,  unratified  location  is  of  a  questionable  nature. 
38 


WHO  MAY  MAKE  LOCATIONS  39 

By  an  Act  of  Congress  all  officers,  clerks,  and  employees  of 
the  General  Land  Office  are  prohibited  from  becoming  directly 
or  indirectly  interested  in  the  entry  or  purchase  of  public  land. 
Subsequent  circulars  and  decisions  of  the  Land  Department  are 
to  the  effect  that  this  prohibition  includes  all  persons  under 
the  control  of  the  Commissioner  of  the  General  Land  Office, 
embracing  the  Land  Office  at  Washington  and  the  local  land  offices, 
the  surveyors-general  and  their  employees,  including  deputy 
mineral  surveyors  and  deputy  land  surveyors  while  under  con 
tract.  It  appears  that  the  location  of  a  mining  claim  or  the 
filing  upon  public  land  by  one  of  these  employees,  or  by  their 
wives,  will,  if  brought  to  the  attention  of  the  Land  Department, 
result  in  the  dismissal  of  the  employee.  In  some  cases  the 
public-land  filings  of  these  employees  have  been  canceled.  The 
Land  Department  has  always  required  that  the  name  of  any 
of  its  employees  be  removed  from  any  application  for  mineral 
patent,  but  it  has  never  passed  on  a  location  made  by  one  of 
its  employees.  A  Utah  court,  in  one  instance,  and  a  Federal 
court  in  another,  held  that  a  location  by  a  deputy  mineral 
surveyor  was  void,  while  a  Nevada  court  held  that  such  a  loca 
tion  was  valid  on  the  undoubtedly  erroneously  conclusion  that 
a  deputy  mineral  surveyor  was  not  a  Land  Department  employee. 
It  is  believed  that  the  courts  will  generally  hold  such  locations 
invalid,  except  where  necessary  to  protect  innocent  purchasers. 


CHAPTER  V 
Lode  Location — Discovery 

R.  S.,  SEC.  2320.  *  *  *  No  location  of  a  mining  claim 
shall  be  made  until  the  discovery  of  the  vein  or  lode 
within  the  limits  of  the  claim  located.  *  *  * 

The  first  essential  in  locating  a  lode  claim  is  a  'discovery'. 
What  is  a  discovery  can  only  be  defined  in  a  general  way.  It 
must  be  rock  in  place,  fixed,  immovable.  Float,  the  segregated 
portions  of  a  blowout,  or  a  detached  part  of  a  vein,  will  not 
constitute  a  discovery.  Mineralization  and  boundaries  are  the 
other  requirements.  The  amount  of  mineral  required  varies,  in 
some  cases  may  be  nil.  In  a  deposit  having  a  general  mineral 
ization,  without  walls,  vein  formation,  or  enclosing  rock,  such 
as  some  porphyry  copper  deposits,  appreciable  mineralization  is 
necessary  to  lead  to  the  inference  that  the  deposit  may  become 
workable.  Where  there  is  a  well  defined  fissure,  contact,  vein, 
or  belt  which  has  been  formed  or  changed  so  as  to  warrant  the 
belief  that  payable  mineral  will  be  met  with  by  following  the 
lead,  vein,  or  lode,  but  little  or  no  mineralization  may  be  re 
quired.  It  has  been  generally  held  by  the  Land  Department, 
and  by  many  of  the  courts,  that  "a  valid  location  of  a  mining 
claim  may  be  made  whenever  the  prospector  has  discovered  any 
indications  of  mineral,  so  that  he  is  willing  to  spend  his  time 
and  money  following  it  with  the  expectation  of  finding  ore." 
This  holding  of  some  of  the  courts,  where  the  question  of  dis 
covery  is  involved,  that  anything  is  a  lode  which  a  miner  would 
be  willing  or  justified  in  following  in  the  expectation  of  finding 
ore,  appears  to  be  a  proper  definition  of  the  term  lode  as  used 
in  connection  with  mining  law.  It  may  be  further  noted  that 
lode,  vein,  lead,  or  ledge  have  the  same  meaning  in  mining  law, 
but  that  the  term  lode  is  more  comprehensive,  and,  being  a  more 
suitable  term  for  deposits  of  vein  character  which  may  not 
40 


DISCOVERY  41 

strictly  be  veins  as  understood  by  miners  and  geologists,  should 
be  generally  used. 

The  evidence  required  for  a  discovery  varies  greatly  with  the 
conditions.  Between  rival  locators  of  a  claim,  slight  evidence 
is  required  on  the  part  of  the  first  discoverer,  especially  if  he 
is  the  prior  claimant.  Likewise,  but  slight  evidence  is  required 
to  satisfy  the  law  in  case  of  application  for  patent,  especially 
where  the  application  is  bona  fide  in  every  respect.  The  dis 
covery  of  a  contact  between  igneous  and  other  rock,  such  as 
between  granite  and  limestone  or  quartzite,  or  a  contact  along 
a  dike,  may  be  sufficient  to  justify  the  miner  in  tunneling  or 
sinking  on  the  contact  in  the  expectation  of  finding  ore.  Or  a 
change  from  an  altered  country  rock  to  a  silicified  rock  with 
a  slight  but  definite  mineralization,  may  encourage  the  miner 
by  indicating  that  he  is  near  an  orebody  or  in  a  zone  which  has 
been  subject  to  the  conditions  under  which  veins  and  ore  deposits 
are  formed.  But  while  there  are  no  hard  and  fast  rules  or 
technical  requirements  as  to  what  does  or  does  not  constitute 
a  vein  or  lode,  every  mineral  stain,  crevice,  alteration,  or  silici- 
fication  cannot  be  taken  as  a  discovery.  There  must  be  some 
logical  reason,  something  beyond  a  mere  hope  or  unwarranted 
belief,  for  assuming  that  payable  ore  may  eventually  be  found. 
However,  this  need  not  be  based  upon  the  opinions  of  expert 
miners  and  geologists.  The  evidence  required  to  support  a  lode 
discovery  in  a  placer  claim,  or  against  an  agricultural  entry, 
is  much  greater,  and  in  the  latter  case  becomes  to  a  large  extent 
a  question  of  comparative  value,  in  which  the  border  line  be 
tween  what  constitutes  a  valid  mineral  discovery  and  for  what 
is  the  land  most  valuable,  cannot  be  distinguished.  In  these 
cases  a  heavy  burden  of  proof  rests  on  the  second  claimant  in 
trying  to  dispossess  the  first  entryman. 

Despite  the  fact  that  there  is  no  question  but  that  a  location 
is  not  valid  unless  based  on  a  mineral  discovery  within  the  lines 
and  on  the  actual  ground  of  the  claim,  a  large  number  of  loca 
tions  are  made  without  a  mineral  discovery,  and  this  in  the 
face  of  the  further  fact  that  such  a  discovery  can  be  made  on 
most  locations  by  some  prospecting  and  effort.  Many  lode  claims 
are  located  for  legitimate  mining  purposes  upon  ground  which 


42  MINING  LAW 

it  is  not  intended  to  develop  as  contemplated  by  the  lode-claim 
laws,  but  which  are  taken  up  in  addition  to  the  actual  mineral 
area  which  it  is  intended  to  develop,  for  the  timber,  for  millsite 
and  townsite  purposes,  or  for  protection.  An  attempt  should 
be  made  to  have  a  mineral  discovery  upon  each  of  these  claims. 
Often  they  can  be  located  so  as  to  include  such  a  discovery. 
In  locating  a  claim,  it  is  expected,  should  the  ground  eventually 
be  thought  valuable,  that  patent  will  be  obtained  for  it.  The 
Government  has  recently  inaugurated  the  practice  of  having 
the  ground  of  all  applications  for  mining  patent  examined  by  a 
mineral  examiner  of  the  Field  Service  of  the  General  Land 
Office,  and  if  within  a  Forest  Reserve,  by  a '  representative  of 
the  Forest  Service  also.  While  these  examiners  may  not  neces 
sarily  question  the  sufficiency  of  the  mineral  discovery  on  the 
ground  of  every  bona  fide  mining  claim  which  does  not  appear 
to  be  more  valuable  for  some  other  purpose,  they  will  usually 
require  strong  evidence  of  a  discovery  on  claims  that  appear 
to  be  more  valuable  for  other  purposes  than  mineral  development 
and  mining. 

If  the  discovery  is  made  within  the  lines  of  the  location,  but 
upon  ground  which  overlaps  and  is  claimed  by  a  prior  or  senior 
locator,  the  newer  or  junior  location  is  invalid,  inasmuch  as  it 
has  no  discovery.  The  finding  of  a  mineral  discovery  upon 
the  ground  actually  claimed  by  the  junior  location,  or  the  appro 
priation  of  the  conflicting  ground  of  the  senior  location  after 
it  has  been  abandoned  or  become  forfeitable  by  failure  to  do 
the  annual  or  assessment  work,  and  the  adoption  of  the  mineral 
discovery  thereon,  will  validate  the  junior  location. 

The  mineral  discovery  may  be  anywhere  upon  the  actual  ground 
of  the  claim  and  not  necessarily  in  the  discovery  shaft  or  on 
the  centre  line  of  the  claim,  except  where  State  statutes  might 
attempt  to  require  it.  The  discovery  may  be  made  any  time 
after  the  location  is  made,  so  long  as  it  is  before  the  discovery 
of  any  rival  locator. 

The  position  of  a  locator  attempting  to  hold  a  location  without 
a  mineral  discovery  cannot  be  fully  defined.  The  locator  is 
entitled  to  be  protected  in  his  occupation  of  the  ground,  espe 
cially  while  trying  in  good  faith  to  make  a  mineral  discovery. 


DISCOVERY  43 

Under  the  law,  other  locators  are  also  entitled  to  go  upon  the 
ground,  so  long  as  it  can  be  done  peaceably  and  without  inter 
fering  with  the  first  claimant,  and  under  such  conditions  to 
attempt  to  make  a  discovery.  In  the  case  of  these  rival  claim 
ants,  the  claim  goes  to  the  one  making  a  discovery  first.  Usually, 
miners  will  not  interfere,  and  the  courts  will  be  lenient,  so  far 
as  they  are  able  to  be  so,,  where  the  claimant  is  working  in 
good  faith  to  develop  mineral;  but  it  must  always  be  remembered 
that  the  Statute  is  clear  and  specific,  and  fully  supported  by 
court  decisions,  in  saying  that  a  location  is  not  valid  until  a 
discovery  is  made.  The  locator  need  not  be  the  first  to  find  or 
uncover  the  mineral  discovery;  he  may  appropriate  any  suffi 
ciently  strong  indication  of  the  proximity  of  valuable  mineral 
deposits  or  any  exposed  lode,  whether  it  has  been  revealed  by 
nature  or  man.  After  patent  is  issued,  the  patent  cannot  be 
attacked  on  grounds  of  no  mineral  discovery. 


CHAPTER  VI 
Lode  Location — Discovery  Work 

The  difference  between  the  mineral  discovery,  the  discovery 
work  or  discovery  shaft,  and  the  discovery  or  location  point, 
stake,  or  monument  often  spoken  of  as  'the  discovery,'  should 
be  clearly  understood.  The  mineral  discovery  is  the  actual  dis 
covery  of  mineral  required  to  validate  a  claim  according  to  the 
Statute,  as  explained  in  the  previous  chapter.  The  discovery 
work  or  shaft  is  work  required  by  the  statutes  of  certain  States 
in  connection  with  the  making  of  a  location,  as  will  be  explained 
in  this  chapter.  The  discovery  or  location  point,  stake,  or  mon 
ument,  'the  discovery,'  is  what  has  become  a  technicality  in 
connection  with  the  locating  and  patenting  of  a  lode  claim. 

It  was  originally  presumed  that  when  the  miner  made  a  min 
eral  discovery  or  found  a  vein,  he  would  erect  alongside  of  it 
a  discovery  or  location  stake  or  monument,  on  which  he  would 
place  a  location  notice  claiming  so  many  feet  in  each  direction 
along  the  lode  'from  this  discovery',  and  so  many  feet  on  each 
side,  and  would  subsequently  sink  a  shaft  or  perform  other  work 
upon  the  mineral  at  this  point,  which  work  would  be  known  as 
the  discovery  shaft,  though  the  term  discovery  work  would  be 
more  applicable,  since  the  work  may  be  a  cut  or  tunnel  instead 
of  a  shaft.  In  this  way  'the  discovery'  containing  the  mineral 
discovery,  the  location  monument,  and  the  discovery  shaft  or 
work,  became  a  point  on  the  centre  or  lode  line  of  the  claim 
from  which  the  claim  could  be  measured  in  all  directions.  In 
taking  up  claims  side  by  side,  or  fractions  of  claims  open  to 
location,  it  was  of  course  impossible  to  find  a  vein,  lode,  or 
mineral  at  each  of  the  desired  points  to  place  the  location  mon 
ument  claiming  the  maximum  amount  of  ground.  This  led  to 
the  placing  of  a  location  or  so-called  discovery  stake  or  mon 
ument  at  any  point  required  in  the  course  of  blocking  out  the 
44 


DISCOVERY  WORK  45 

claim,  and  assuming  the  centre  line  of  the  claim  passing  through 
this  monument  as  a  theoretical  lode  or  lode  line.  To  give  color 
to  this  form  of  locating,  the  discovery  work  is  sometimes  per 
formed  at  the  location  stake,  even  though  the  mineral  is  else 
where.  This  is  the  plan  pursued  when  there  is  no  mineral  on 
the  claim.  While  there  is  no  real  sanction  in  the  law  for  this 
method  of  locating  and  presuming  a  lode  where  none  exists, 
it  has  become  a  custom,  largely  perhaps  because  in  surveying 
and  platting  a  claim  for  patent  it  is  always  required  that  a 
discovery  post  be  placed  on  the  centre  line  of  the  claim  and 
this  centre  line  be  considered  as  a  lode.  The  best  example  of 
this  is  seen  in  examining  the  plat  of  a  group  of  claims  which 
have  been  patented.  Each  claim  is  shown  with  a  'discovery' 
on  the  centre  or  theoretical  lode  line  of  the  claim.  In  the  field 
will  be  found  a  post  or  monument  at  the  represented  discovery, 
and  often  a  small  shaft,  but,  in  the  majority  of  cases,  no  mineral. 

The  mineral  discovery  and  discovery  work  or  shaft  may  be 
anywhere  about  the  claim  and  not  necessarily  at  a  location 
stake  on  the  centre  line,  except  where  State  statutes  attempt 
to  require  it.  Such  a  requirement  of  what  under  the  present 
conditions  is  inconsistent  and  almost  impossible  in  the  majority 
of  cases,  is  of  doubtful  propriety  and  has  been  a  source  of  con 
fusion. 

The  Federal  Statutes  and  Land  Department  regulations  re 
quire  no  development  work  in  the  process  of  locating  a  claim, 
but  the  statutes  of  all  States  do,  except  in  California,  Utah,  and 
Alaska,  in  which  no  such  work  need  be  done.  This  is  the  dis 
covery  shaft  or  discovery  work.  Colorado,  Montana,  Idaho,  North 
Dakota,  Oregon,  South  Dakota,  and  Wyoming  allow  sixty  days 
from  date  of  location  in  which  to  perform  the  discovery  work. 
Arizona,  Nevada,  New  Mexico,  and  Washington  allow  ninety 
days.  The  statutes  of  those  States  requiring  discovery  work, 
except  Arizona,  are  uniform  in  stating  that  the  shaft  shall  be 
ten  feet  deep  from  the  lowest  part  of  the  collar  or  rim  at 
the  surface,  or  that  an  equivalent  amount  of  work  shall  be  done, 
such  as  a  cut  or  tunnel  equal  to  such  a  shaft  having  a  4  by  4- 
ft.  or  a  4  by  6-ft.  area,  and  usually  requiring  that  the  shaft 
or  equivalent  work  cut  the  vein  or  lode  ten  feet  or  more  below 


46  MINING  LAW 

the  surface.  It  is  immaterial  if  the  work  is  performed  within 
the  required  time  or  afterward,  provided  no  other  and  adverse 
location  of  the  claim  is  made  after  the  expiration  of  the  stat 
utory  time  and  before  the  completion  of  the  work.  The  statutes 
of  the  particular  State  should  be  examined.  Each  claim  must 
have  its  own  discovery  work.  The  work  may  be  performed  by 
extending  the  previous  work  of  an  abandoning  or  forfeiting 
owner.  There  is  no  relation  between  discovery  work  and  assess 
ment  work;  each  is  to  meet  a  separate  requirement.  The  dis 
covery  work  is  entirely  applicable  toward  the  assessment  only 
when  performed  within  the  year  following  the  initial  steps  of 
location,  but  may  be  applied  on  the  $500  expenditure  for  patent 
purposes  at  any  time. 


CHAPTER  VII 

Lode  Location — Location  Notice 

The  miner  contemplating  making  a  location,  may  find  three 
distinct  but  usually  more  or  less  allied  conditions.  He  may 
find  an  area  in  which  the  formation  and  rock  exposures  indicate 
to  his  experienced  eye  the  likelihood  of  ore  deposits,  and  within 
which  area  he  wishes  to  have  the  privilege  of  prospecting  until 
he  can  determine  just  what  ground  he  wants.  He  may  find  a 
mineral  discovery  or  vein  and  wish  to  locate  it,  or  he  may  want 
to  take  up  a  certain  area  left  open  by  other  locators. 

In  the  first  case,  the  miner  having  found  a  likely  spot  to  pros 
pect,  has  some  right  to  have  the  ground  reserved  for  his  location 
pending  his  efforts  to  make  a  discovery,  lay  out  his  claim,  and 
erect  the  stakes.  This  right,  which  is  granted  by  custom  and 
a  sense  of  equity,  and  not  by  any  Federal  or  State  statute  or 
regulation,  can  only  be  contingent  upon  actual  possession  and 
exploration  of  a  small  area  of  ground  during  the  period  usually 
allowed  to  complete  a  location,  which  in  some  States  may  be 
as  long  as  ninety  days.  To  further  strengthen  this  right,  a 
notice  should  be  posted  stating  that  the  right  to  prospect  the 
ground  and  perfect  a  location  within  the  statutory  length  of 
time  is  claimed. 

In  the  second  case,  the  miner  having  made  a  discovery  by 
finding  the  outcrop  of  a  vein  or  other  signs  of  a  lode,  for  the 
purpose  of  holding  the  same  until  he  can  determine  the  course 
of  the  vein,  decide  what  ground  he  wants,  and  place  his  corner 
stakes,  may  erect  a  post  or  monument  of  stones  and  place  upon 
it  a  notice  stating  that  he  has  appropriated  the  lode.  Such  a 
notice  may  read: 

Having  discovered  this  lode,  I  claim  1500  ft.  of  it  in 
length,  300  ft.  on  each  side,  and  the  full  length  of  time 
for  perfecting  location. 

JOHN  D.  STRANGE. 
May  19,  1910. 

47 


48  MINING  LAW 

This  notice  may  be  made  longer  and  more  complete,  and  again 
it  is  not  necessitated  by  any  Federal  Act  or  regulation,  though 
State  statutes  may  require  it.  However,  it  is  the  best  method 
of  holding  the  ground  until  the  location  can  be  perfected,  and 
one  that  the  courts  are  bound  to  recognize  and  protect,  for  the 
reason  that  it  is  based  on  an  actual  mineral  discovery.  While 
the  above  notice  presumes  that  the  1500  ft.  will  be  measured 
along  the  general  course  of  the  vein,  in  reality,  in  most  cases, 
the  claim  can  be  swung  about  the  discovery  in  any  direction. 
Generally  such  a  notice  would  cause  other  locators  to  keep  1500 
ft.  in  all  directions  from  the  discovery,  though  the  courts,  under 
a  strict  construction,  would  allow  only  750  ft.  in  each  direction 
along  the  vein  or  lode  line,  unless  the  notice  claimed  the  1500 
ft.  differently.  The  above  location  claims  the  maximum  area  of 
ground;  less  can  be  taken  if  desired. 

Having  made  a  discovery  and  placed  a  discovery  or  location 
post  or  monument,  either  with  or  without  the  above  preliminary 
location  notice,  the  next  step  is  to  trace  the  apparent  course 
of  the  vein  and  decide  what  ground  is  wanted.  After  this,  the 
miner  should  stake  his  claim  by  placing  posts  or  monuments 
to  mark  its  position  and  boundaries,  sink  a  discovery  shaft  if 
required  by  State  statutes  or  district  rules,  and  place  his  loca 
tion  notice  upon  the  ground  and  record  the  same  with  the  county 
recorder  of  the  county  within  which  the  claim  lies,  and  also 
with  the  mining  district  recorder  where  there  is  one. 

The  notice  last  spoken  of  is  the  real  location  notice.  The 
Federal  Statutes  do  not  require  a  location  notice  to  be  prepared, 
placed  on  the  ground,  or  recorded,  though  most  of  the  State 
statutes  do.  Nevertheless,  the  use  of  the  location  notice  or 
certificate  and  the  recording  of  the  same  has  become  so  universal 
that  custom  has  almost  made  it  mandatory,  even  in  the  face  of 
the  ruling  of  the  courts  that  it  is  not  required  in  the  absence 
of  State  statutes  or  district  rules  to  that  effect.  Utah  and  Cali 
fornia  allow  thirty  days  from  date  of  location  within  which  to 
record  the  location  notice.  Montana,  North  Dakota,  Oregon, 
South  Dakota,  and  Wyoming  allow  sixty  days.  Alaska,  Arizona, 
Colorado,  Idaho,  Nevada,  New  Mexico,  and  Washington  allow 
ninety  days  to  three  months,  The  location  notice  posted  upon 


LOCATION  NOTICE  49 

the  claim  needs  be  a  simple  notice  only,  claiming  the  lode  with 
out  details,  except  where  State  statutes  direct  more;  but  the 
notice  filed  for  record  must  be  more  complete,  in  accordance 
with  section  2324  of  the  Revised  Statutes,  which  says,  "all  rec 
ords  of  mining  claims  hereafter  made  shall  contain  the  name 
or  names  of  the  locators,  the  date  of  the  location,  and  such  a 
description  of  the  claim  or  claims  located  by  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the 
claim."  The  best  practice  is  to  word  the  location  notice  placed 
upon  the  ground  the  same  as  the  one  filed  for  record.  The  one 
filed  should  contain  all  the  information  required  by  the  Federal 
and  State  statutes  and  district  rules.  The  location  of  the  claim 
and  its  boundaries  should  be  described  as  fully  as  possible,  so 
that  it  may  be  easily  found  and  distinguished.  It  has  been 
held  that  the  requirement  that  the  claim  be  "located  by  refer 
ence  to  some  natural  object  or  permanent  monument  as  will 
identify  the  claim"  is  met  by  the  claim  corner  posts  or  monu 
ments.  But  the  Statute  undoubtedly  means  some  more  perma 
nent,  striking,  and  immovable  monument,  and  in  consequence  the 
claim  should  be  tied  to,  or  located  by,  some  easily  identified  or 
well  known  object.  Legal  verbiage  and  provisos  in  the  location 
certificate  should  be  dispensed  with,  for  it  cannot  be  understood 
how  any  greater  rights  or  privileges  can  be  obtained  than  those 
given  by  the  simple  statement  that  the  ground  is  located  as 
a  lode  mining  claim.  The  requirements  of  all  the  State  statutes 
have  been  gathered  into  the  following  list: 

1.  Name  of  lode  or  claim. 

2.  Name  or  names  of  locators. 

3.  Date  of  location. 

4.  Length  of  claim  on  each  side  of  discovery  or  location  mon 
ument. 

5.  Width  of  claim  on  each  side  of  lode  or  centre  line. 

6.  Course  of  lode  or  centre  line. 

7.  Reference  to   natural   object   or   permanent   monument   as 
will  identify  the  claim. 

8.  Location  and  description  of  each  corner. 

9.  Name  of  mining  district,  county,  and  State. 

10.  Intention  to  locate  as  a  mining  claim   (New  Mexico  only). 


50 


MINING  LAW 


11.  Affidavit  of  citizenship,   familiarity  with   the  ground,   and 
that   none   is   claimed   adversely,   and   that   discovery   work   has 
been  performed   (Idaho  only). 

12.  Distance  and  direction  from   discovery  monument  to  nat 
ural  object  or  permanent  monument   (Idaho  only). 

13.  Verify  location  notice  as  an  affidavit  (Montana  only). 

14.  Dimensions  and  location  of  discovery  work  (Nevada  only). 

15.  Affidavit   of    performance    of   the   discovery   work    (Oregon 
only). 

16.  Reference  to  quarter-section  or  section  corner,  if  upon  sur 
veyed   land    (Wyoming  only). 

The  following  is  a  good,  brief,  but  comprehensive  form  of  a 
location  certificate,  and  contains  the  first  nine  requirements,  to 
which  should  be  added  any  of  the  additional  seven  requirements 
which  may  be  necessary.  Fig.  3  is  a  diagram  of  the  claim. 


soo' 


Discovery 


Cor.No.3  Cor.  No,  Z 

Fig.   3.      LODE  MINING  CLAIM  LOCATION 


I  have  this  tenth  day  of  July,  1910,  located  the  Ex 
chequer  Lode  Mining  Claim  on  this  ground,  claiming  1500 
ft.  in  length  along  an  easterly  and  westerly  lode  line 
through  this  discovery,  and  300  ft.  on  each  side  of  same, 
as  follows: 

Beginning  at  this  discovery  point  and  monument,  and 
running  easterly  500  ft.  along  lode  or  centre  line  to  the 
east  centre  end-line  stake — Corner  No.  1 — ,  thence  south 
erly  300  ft.  to  the  southeast  corner  stake — Corner  No.  2 — , 
thence  1500  ft.  westerly  to  the  southwest  corner  stake — 
Corner  No.  3 — ,  thence  300  ft.  northerly  to  the  west  centre 
end-line  stake — Corner  No.  4 — ,  which  is  1000  ft.  westerly 
along  the  lode  or  centre  line  from  discovery,  thence  300 
ft.  northerly  to  the  northwest  corner  stake — Corner  No. 


LOCATION  NOTICE  51 

5 — ,  thence  1500  ft.  easterly  to  the  northeast  corner  stake 
— Corner  No.  6 — ,  thence  300  ft.  southerly  to  the  east 
centre  end-line  stake — Corner  No.  1;  all  corners  being 
wood  posts  set  in  stone  monuments,  and  inscribed  with 
name  of  this  claim  and  their  number  and  position. 

This  claim  lies  about  one-half  mile  south  of  the  Horace 
Greeley  claim,  survey  No.  4876,  and  on  the  north  side  of 
Red  Mountain  near  its  foot,  in  the  Calico  Peak  Mining 
District,  San  Bernardino  County,  California.  It  joins  on 
the  west  end-line  of  the  May  Day  claim,  and  on  the  north 
side-line  of  the  Greenwater. 

JOHN  D.  STRANGE,  Locator. 

The  location  notice  may  be  written  on  a  post  or  blazed  tree. 
It  may  be  written  on  a  board  or  paper  and  tacked  to  a  post 
or  tree.  The  notice  has  even  been  folded  and  placed,  with  a 
corner  projecting,  between  two  flat  stones  at  the  top  of  a  stone 
monument.  The  better  way  is  to  put  the  notice  in  a  box,  or 
in  a  bottle  or  tin  can  turned  upside  down  to  prevent  entrance 
of  rain,  and  set  in  a  conspicuous  place  in  the  rock  monument. 
If  a  post  is  used,  the  can  should  be  nailed  to  the  post  in  an 
upside-down  position.  If  the  location  notice  is  once  properly 
posted  and  proof  of  that  fact  can  be  made,  the  locator  cannot 
be  made  to  suffer  on  account  of  the  disappearance  of  the  notice. 
Hence  the  advisability  of  having  a  witness  to  the  location  and 
his  signature  attached  to  the  certificate  filed  for  record. 


CHAPTER  VIII 
Lode  Location — Laying  Out  and  Staking 

Before  1866  the  length  and  width  of  lode  claims  was  not  uni 
form.  The  Act  of  Congress  of  1866  limited  the  location  of  a 
single  locator  to  200  ft.  in  length  along  the  lode,  and  to  an 
unspecified  width  to  be  fixed  by  local  rules,  while  a  consolidated 
single  claim  of  an  association  of  persons  was  limited  to  3000 
ft.  along  the  lode.  This  will  explain  the  long,  narrow  shape 
of  the  older  patented  claims. 

The  Act  of  1872  regulates  the  present  maximum  size  of  claims 
as  follows:  "shall  not  exceed  1500  ft.  in  length  along  the  vein 
or  lode"  and  "no  claim  shall  extend  more  than  300  ft.  on  each 
side  of  the  middle  of  the  vein  at  the  surface"  (R.  S.,  sec.  2320). 
Most  of  the  small  and  narrow  claims  located  but  not  patented 
before  the  passage  of  this  Act  were  subsequently  amended  to 
take  in  the  maximum  area.  The  statutes  of  Colorado,  North 
Dakota,  and  South  Dakota  prescribe  a  smaller  area  than  the 
Federal  Statutes  (see  Appendix  A).  It  was  the  intent  of  the 
law  to  give  each  location  only  1500  ft.  in  length  along  the  out 
crop  of  the  vein  or  lode  and  300  ft.  on  each  side,  that  a  centre 
line  parallel  to  the  length  of  the  claim  and  dividing  it  into 
two  equal  parts  should  correspond  with  the  outcrop  of  the 
vein  or  lode,  but  as  this  is  rarely  if  ever  possible,  the  centre 
line  or  presumed  'middle  of  the  vein  at  surface'  is  and  will 
be  considered  as  a  theoretical  lode  line.  The  size  and  shape 
of  lode  claims  may  be  said  to  be  contained  in  the  following: 
(1)  the  lode  or  centre  line  may  not  be  more  than  1500  ft.  in 
length;  (2)  side  lines  may  not  be  more  than  300  ft.  distant 
at  right  angles  from  the  lode  line  or  its  prolongation.  Adher 
ence  to  these  two  rules  makes  20.66  acres  the  maximum  area 
of  a  claim.  The  side  lines  need  not  be  parallel,  but  it  is  prefera 
ble  to  have  them  so.  End  lines  should  be  straight,  parallel  to 
52 


LAYING  OUT  AND  STAKING 


53 


each  other,  and  have  substantial  existence.     Lode  lines  should 
not  be  arbitrarily  irregular  or  zigzag. 


V:.- VI;    '•'-' '-V -;  .•  -''•',;.':'    ''r.  .-•-•'-  -~.'';V   -  • '  /    '••  •*•  , .- '.  -  ".  -'•'-  ':'y'''yv  '••'•/-  'j  -A; 
of  vein 


Fig.  4 

Fig.  4  is  an  ideally  laid  out  claim,  being  a  perfect  rectangle 
with  side  lines  1500  ft.  long  and  end  lines  600  ft.  in  length,  and 
appropriating  1500  ft.  in  length  along  the  outcrop  of  the  vein 
and  300  ft.  on  each  side,  as  contemplated  by  the  law. 


Fig.  5 


Fig.  6 


Fig.  7 


Fig.  8 


Fig.  5,  6,  7,  and  8  represent  valid  locations,  as  they  do  not 
claim  more  than  1500  ft.  along  the  lode  line,  nor  over  300  ft. 
at  right  angles  from  the  lode  line  or  its  prolongation;  also,  the 


54 


MINING  LAW 


end  lines  are  parallel.  Fig.  9  presents  an  interesting  problem, 
in  that,  while  in  conformity  with  the  law,  and  claims  of  this 
shape  have  been  patented,  it  may  allow  over  3000  ft.  of  a  lode 
to  be  taken.  The  principle  is  still  further  stretched  in  Fig.  10. 


Fig.  9 


T 


Fig.  10 


Fig.  11 


It  is  said  that  claims  of  this  shape  have  been  patented.  By 
still  further  stretching  the  point,  as  shown  by  Fig.  11,  it  would 
be  possible  to  claim  over  a  mile  of  a  lode  in  one  location.  The 
question  comes,  where  should  this  method  cease?  It  would  be 
a  hardship  to  require  that  the  end  lines  be  at  right  angles  to 
the  lode  line,  but  it  seems  desirable  that  the  pushing  of  the 
claim  out  of  a  rectangular  shape  should  cease  with  Fig.  9, 
where,  if  carried  any  further,  a  line  at  right  angles  through  the 
lode  line  could  not  be  made  to  touch  or  cut  both  side  lines. 
Patent  may  possibly  be  allowed  on  claims  shaped  as  in  Fig.  10, 
but  it  is  advisable  to  take  no  chances.  Claims  shaped  as  in 
Fig.  11,  with  the  line  or  outcrop  of  the  actual  lode  indetermin 
able,  so  that  the  locator  could  not  be  held  to  only  1500  ft.  of 


LAYING  OUT  AND  STAKING  55 

the  actual  lode,  would  undoubtedly  be  refused  patent  by  the 
Land  Department  on  grounds  that  such  claims  were  against 
the  intent  of  the  Statute  and  good  public  policy. 

Section  2320  of  the  Revised  Statutes  says,  "the  end  lines  of 
each  claim  shall  be  parallel  to  each  other."  The  Land  Depart 
ment  rigidly  enforces  the  above  rule  when  claims  are  surveyed 
for  patent.  The  necessity  of  making  the  end  lines  parallel 
arises  in  the  attempt  to  preserve  the  apex  or  extralateral  right 
to  follow  the  vein  on  its  dip  out  of  the  bounding  lines  of 
the  claim;  such  rights  being  limited  by  the  Statutes  to  that 
part  of  the  vein  lying  within  the  prolongation  of  the  end  lines 
on  the  surface  when  extended  vertically  downward  toward  the 
centre  of  the  earth.  Should  these  end  lines  converge  toward  or 
diverge  from  each  other,  the  locator  would,  as  depth  was  at 
tained  on  the  vein,  obtain  less  (Fig.  12)  or  more  (Fig.  13)  than 


Fig.  12  Fig.  13 

his  rightful  portion.  Consequently,  if  the  end  lines  are  not  par 
allel,  apex  or  extralateral  rights  are  not  allowed.  This  also 
explains  the  reason  for  making  the  end  lines  straight  and  un 
broken,  for  were  they  otherwise  the  apex  rights  could  not  be 
determined.  Where  the  vein  passes  into  the  claim  and  out 
through  the  side  lines,  instead  of  the  end  lines,  the  side  lines 
become  the  end  lines  for  extralateral  right  purposes.  If  these 
side  lines  are  parallel,  extralateral  rights  will  be  allowed.  If 
not  parallel,  no  such  rights  will  be  permitted.  Consequently, 
the  side  lines  should  be  made  parallel,  even  though  the  law  does 
not  require  it. 

The  Land  Department  has  ruled  that  an  end  line  a  few  inches 


56  MINING  LAW 

long  will  not  be  acceptable,  but  that  end  lines  must  have  some 
substantial  existence.  Locations  without  parallel  end  lines,  or 
where  one  of  the  end  lines  does  not  exist  by  reason  of  the  claim 
being  located  in  a  triangular  shape,  are  not  valid;  locators  will 
be  allowed  to  make  amended  locations  to  comply  with  the  law. 
Patent  has  been  refused  upon  claims  surveyed  in  an  irregular 
and  zigzag  shape,  on  the  ground  that  it  was  an  attempt  to 
suit  the  convenience  and  desires  of  the  locator,  and  not  in 
comport  with  good  public  policy  or  the  rights  of  others.  In 
general,  lode  claims  should  be  laid  out  in  the  shape  of  a  paral 
lelogram,  preferably  a  rectangle  claiming  the  maximum  length 
of  1500  ft.  along  the  lode  or  centre  line  and  300  ft.  on  each  side 
of  it.  Where  the  corner-posts  cannot  be  placed  on  unlocated 
or  unclaimed  public  domain,  they  may  be  placed  upon  the  ground 
of  other  claims  or  other  entries  than  for  mineral,  whether  pat 
ented  or  unpatented.  Corner  stakes  may  be  placed  upon  the 
ground  of  others  for  the  purpose  of  making  the  end  lines  par 
allel  and  taking  in  all  the  unoccupied  ground,  but  it  is  pre 
sumed  that  no  more  already  occupied  ground  will  be  blanketed 
or  embraced  within  the  lines  of  the  newer  or  junior  claim  than 
necessary.  While  no  right  is  acquired  in  this  way  to  ground 
already  located  or  entered,  it  is  customary  to  locate  a  full-size 
claim  or  one  as  large  as  can  be  made  with  propriety,  that  in 
case  the  claimant  of  the  older  or  senior  location  should  fail 
to  do  his  assessment  work  and  the  claim  thereby  become  for- 
feitable,  the  ground  in  conflict  or  overlap  could  be  included 
within  the  junior  claim.  The  decisions  of  the  courts  are  con 
flicting  as  to  whether  a  junior  locator  acquires  the  overlap  as 
soon  as  the  senior  location  becomes  forfeitable  through  failure 
to  do  the  annual  or  assessment  work,  or  is  abandaned.  The 
better  view,  and  the  one  last  announced  by  the  U.  S.  Supreme 
Court,  is  that,  as  the  junior  location  when  made  did  not  include 
the  overlap,  it  can  only  include  it  by  an  amended  location  made 
for  that  purpose,  after  the  overlap  is  open  to  location,  and 
that,  if  such  an  amended  location  is  not  made,  the  senior  locator 
may  resume  work,  or  other  parties  may  relocate  the  senior  claim 
including  the  overlap.  When  patent  is  being  obtained  for  a 
claim,  the  applicant  gets  all  the  ground  within  his  lines  which 


LAYING  OUT  AND  STAKING  57 

has  not  already  been  formally  filed  upon,  entered,  or  patented, 
which  is  not  specifically  rejected  in  his  applicaton,  or  for  which 
adverse  proceedings  have  not  been  commenced  and  carried  to 
a  successful  culmination  by  other  claimants;  consequently,  the 
location  of  a  junior  claim  applying  for  patent  will  take  the 
overlap  with  a  senior  unpatented  location,  unless  the  senior 
location  adverses  the  application  for  patent  of  the  junior  loca 
tion  to  the  extent  of  the  conflict. 

The  proper  way  to  locate  a  fraction  of  a  claim  is  to  make 
a  location  based  upon  a  mineral  discovery  on  the  fraction  or 
ground  to  be  actually  claimed,  and  then  lay  out  a  claim  as  if 
on  unoccupied  public  domain,  if  it  can  be  peaceably  done;  such 
a  claim  to  be  sufficiently  large  to  embrace  all  of  the  fraction 
or  fractions,  since  segregated  pieces  of  ground  may  be  included 
within  the  boundaries  of  one  claim.  The  discovery  shaft  and 
location  stake  must  be  upon  the  ground  actually  claimed,  the 
same  as  the  mineral  discovery.  It  is  immaterial  at  what  point 
on  the  lode  or  centre  line  the  discovery  or  location  stake  is 
placed,  it  may  be  at  either  end  or  farther  within  the  claim. 
The  mineral  discovery  and  discovery  shaft  or  work  need  not 
be  on  the  lode  or  centre  line  or  at  the  location  stake.  They 
may  be  anywhere  within  the  claim,  except  where  State  statutes 
may  attempt  to  require  them  to  be  at  the  location  or  discovery 
stake. 

While  the  law  clearly  contemplated  making  locations  of  a 
rectangular  shape,  taking  in  not  more  than  1500  ft.  in  length 
of  a  vein  and  300  ft.  on  each  side,  and  that  the  locator  would 
confine  himself  to  a  few  locations  along  well  defined  veins, 
this  was  based  on  the  ideas  of  former  days  when  the  lode  was 
the  main  object;  in  the  actual  practice  today,  giving  surface 
area  the  most  importance,  locations  are  quite  often  made  in 
groups,  aiming  to  take  in  a  certain  area  of  ground  supposed 
to  be  mineralized.  As  far  as  practicable,  the  mineral  discovery 
should  be  upon  the  centre  or  lode  line  of  the  claim;  this  centre 
or  lode  line  should  also  closely  correspond  with  the  actual  out 
crop  of  the  vein  or  lode,  when  possible.  A  few  court  decisions 
are  to  the  effect  that  a  lode  location  cannot  claim  more  than 
300  ft.  on  each  side  of  the  middle  of  the  vein  at  the  surface, 


58  MINING  LAW 

as  the  Statute  reads,  and  that  consequently  all  ground  more 
than  300  ft.  from  the  vein  outcrop  is  excess  area  to  be  deducted 
from  the  location.  In  one  case  where  the  vein  crossed  both 
side  lines,  it  was  held  that  the  side  lines  became  the  end  lines 
and  that  the  location  was  invalid  beyond  300  ft.  on  each  side 
of  the  vein  at  the  surface.  This  conception  is  against  almost 
every  idea  and  condition  that  prevails  in  mining  today,  and 
its  enforcement  would  be  productive  of  endless  harm  and  con 
fusion;  the  courts  do  not  generally  hold  to  it.  The  miner  now 
asks,  shall  he,  in  locating  a  group  to  take  up  a  certain  area 
of  ground,  locate  the  claims  so  that  the  centre  or  lode  line  of 
each  claim  corresponds  with  a  supposed  vein  outcrop  and  con 
tains  a  mineral  discovery,  no  matter  how  heterogeneously  and 
conflictingly  the  claims  lie  or  how  inordinate  in  number  they 
are;  or  shall  he  block  them  out  regularly,  even  though  all  the 
centre  or  lode  lines  do  not  correspond  with  vein  outcrops  and 
there  is  not  a  mineral  discovery  on  every  centre  or  lode  line? 
It  would  appear  that  the  claim  on  the  principal  mineralization, 
the  claim  that  is  the  nucleus  of  the  group,  or  a  single  claim, 
had  best  be  located  according  to  the  theory  of  the  Statute  when 
possible,  but  that  the  other  claims  should  be  blocked  out  reg 
ularly;  at  least,  that  is  the  manner  in  which  it  is  invariably 
done  in  practice.  After  patent  the  question  of  having  the  lode 
or  centre  line  correspond  to  the  vein  outcrop  cannot  be  raised. 
Having  decided  upon  the  ground  which  he  wishes  to  hold, 
the  miner  should  next  determine  how  he  can  locate  it  to  the 
best  advantage.  This  means  how  he  can  cover  the  most  valuable 
ground  with  the  least  number  of  locations,  so  that  he  need  not 
do  an  inordinate  amount  of  assessment  work  yearly;  how  he 
shall  place  them  so  that  his  assessment  work  done  at  an  ad 
vantageous  place  or  on  a  good-looking  vein  or  mineralization 
may  tend  to  benefit  all  the  claims  according  to  the  requirements 
of  assessment  work,  and  later  to  benefit  them  for  patent  pur 
poses;  how  he  can  manage  to  have  a  mineral  discovery  on  each 
claim  sufficient  to  prevent  being  dispossessed  on  that  score;  and 
how  he  can  obtain  the  most  advantageous  extralateral  rights. 
In  this  determination  the  miner  can  only  be  guided  by  his 


LAYING  OUT  AND  STAKING 


59 


familiarity  with  the  laws  and  regulations,  and  the  specific  con 
ditions  under  which  he  finds  himself. 


Oitcevery 


P/an 


Cross  Section 

Fig.  14 

Fig.  14  is  a  concrete  illustration  of  a  condition  that  often 
arises.  The  miner,  having  found  a  lode  at  the  point  marked 
'Discovery'  on  B,  locates  three  claims  along  it.  On  A  he  un 
covers  the  lode  by  a  little  digging,  and  validates  that  claim. 
B  is  validated  by  its  discovery,  but  (7,  being  low  down  on  the 
creek  and  covered  with  deep  soil,  has  no  discovery.  To  develop 
his  lode,  the  miner  starts  a  tunnel  on  the  extreme  end  of  B 
as  shown,  and  within  a  short  distance  cuts  the  vein.  The  work 
done  in  the  tunnel  probably  might  not  be  allowed  as  assessment 
work  on  G  if  questioned  in  court,  and  certainly  would  not  be 
accepted  for  patent  purposes  on  (7,  as  it  does  not  tend  to  de 
velop  that  claim.  Consequently  the  miner  would  have  to  spend 
$500  upon  the  ground  of  (7  before  it  could  be  patented.  By  push 
ing  the  claims  ahead  150  feet,  as  shown  by  the  dotted  lines, 
the  tunnel  would  be  started  upon  C  and  a  mineral  discovery 
made  to  validate  that  claim,  while  $500  worth  of  the  tunnel 
would  be  on  (7  and  sufficient  to  patent  it. 

"The  location  must  be  distinctly  marked  on  the  ground  so 
that  its  boundaries  can  be  readily  traced"  (R.  S.,  sec.  2324). 
This  is  mandatory  and  a  most  important  thing — as  important 
as  a  mineral  discovery,  and  usually  more  so.  For  marking  the 
location  upon  the  ground,  stakes  or  monuments  should  be  placed, 
besides  at  the  discovery  or  location  point,  at  each  corner  and 
angle  of  the  claim.  Most  locators  place  stakes  at  the  centre 
of  each  end  line.  Alaska,  New  Mexico,  Utah,  and  California 


60  MINING  LAW 

have  no  statutes  on  special  staking,  consequently  stakes  at  the 
corners  and  angles  are  sufficient.  Washington  requires  a  monu 
ment  placed  at  'each  corner.'  The  Montana  statute  states  specifi 
cally  that  angles  in  addition  to  corners  shall  be  staked,  while  the 
Idaho  statute  says  that  "any  angle  in  the  side  lines"  must  be 
staked  in  addition  to  corners.  Colorado,  Nevada,  and  Wyoming 
require  centre  side-line  stakes  in  addition  to  corners.  Arizona 
and  Oregon  require  centre  end-line  stakes  as  well  as  corners. 
North  Dakota  and  South  Dakota  require  corners,  centre  side 
line  stakes,  and  one  at  each  end  of  the  lode.  The  usual  method 
of  staking  or  monumenting  is  to  use  stakes,  preferably  similar 
to  patent  stakes  by  being  three  or  four  inches  square,  dressed, 
and  projecting  three  feet  or  more  from  the  ground.  Usually 
they  are  undressed  posts  cut  from  saplings  and  placed  in  a 
mound  of  earth  and  rock.  Well  blazed  trees  or  squared  sapling 
stumps  are  good.  Mounds  of  stone  are  also  good,  or  a  single 
large  boulder  may  be  marked  to  indicate  that  it  is  a  corner. 
The  statutes  of  each  State  should  be  consulted  for  their  re 
quirements.  The  best  monument  consists  of  a  pile  of  stone, 
carefully  laid  up,  earth  being  placed  in  the  base  to  better  hold 
the  rocks  in  position,  while  in  the  centre  is  placed  a  post  three 
or  four  inches  square  or  in  diameter,  and  five  or  six  feet  long. 
Each  post  should  be  blazed  on  a  side  facing  the  centre  of  the 
claim  and  have  written  thereon  by  a  hard  lead-pencil  or  keel, 
or  have  cut  into  it,  the  name  of  the  claim  and  the  position 
and  number  of  the  corner,  as  'Exchequer  Lode  Claim — South 
east  Corner — Post  No.  2.'  The  monuments  of  previous  and 
forfeiting  locators  may  be  adopted.  The  stakes  of  adjoining 
locators  may  perhaps  be  employed  by  inscribing  on  the  proper 
side,  but  it  is  always  best  to  insert  a  new  stake  in  the  pile  of 
rock,  or  in  the  absence  of  stakes  to  raise  a  new  pile  of  rock  as 
near  the  other  rock  monument  as  possible.  Where  a  post  cannot 
be  set  on  account  of  inaccessibility  or  liability  of  removal,  a 
witness  corner  should  be  established  on  the  line  as  near  the 
proper  point  as  possible.  Without  doubt  a  witness  corner  placed 
because  the  locator  was  forcibly  prevented  from  placing  his 
corner  on  already  claimed  ground  in  his  effort  to  get  parallel 
end  lines,  is  sufficient  when,  in  connection  with  the  description 


LAYING  OUT  AND  STAKING  61 

in  the  location  notice,  it  gives  a  clear  understanding  of  the  posi 
tion  of  the  claim  and  the  boundaries.  Marking  the  lines  by 
blazes  or  brush-cutting  is  excellent. 

When  possible,  it  is  well  to  tie  in  the  corners  by  reference 
in  bearing  and  distance  to  some  prominent  object,  monument, 
or  the  corner  of  another  claim.  Certainly  at  least  one  such  tie 
should  be  made.  To  tie  the  claim  to  a  section  corner  or  other 
land  survey  monument  or  a  stake  of  a  patented  claim,  is  espe 
cially  good;  but  outside  of  the  knowledge  of  the  exact  location 
of  the  claim,  there  is  no  greater  benefit  than  a  tie  to  any  per 
manent  object.  The  whole  purpose  in  marking  claims  and  tying 
them  to  permanent  objects  is  that  a  person  may  go  upon  the 
ground,  find  the  claim,  and  trace  the  boundaries.  This  is  the 
question  to  be  determined  when  insufficiency  of  markings  is 
being  litigated  in  the  courts.  The  monuments  and  markings 
in  the  field  will  control  over  the  stated  courses  and  distances 
in  the  location  notice  when  the  two  disagree.  When  the  locator 
has  once  placed  his  corners,  he  has  satisfied  the  requirements; 
he  has  at  that  time  carved  out  and  appropriated  a  part  of  the 
public  domain,  to  which  he  is  entitled  as  long  as  his  possessory 
right  holds  good,  whether  the  corners  remain  and  are  kept  up, 
or  whether  they  disappear  through  the  passing  of  time  or  the 
agency  of  others.  It  can  readily  be  understood  that  the  corners 
should  be  kept  up  to  warn  away  other  locators;  also,  the  deputy 
mineral  surveyor,  when  surveying  the  claim  for  patent,  is  re 
quired  to  know  that  he  is  keeping  within  the  boundaries  of  the 
location  by  finding  the  corners  or  obtaining  good  proof  of  where 
they  existed. 

In  staking  a  claim  the  miner  does  not  always  traverse  or  run 
the  boundaries  of  his  claim.  An  excellent  method,  when  staking 
without  a  surveyor,  is  to  start  from  the  discovery  monument 
and  pace  along  the  lode  line  the  desired  distance,  guided  by  a 
compass,  if  one  is  available,  to  the  point  where  the  centre  end- 
line  stake  is  to  be  erected.  Then  from  the  centre  end-line  stake 
pace  off  and  place  the  corner  stakes  of  that  end  line,  returning 
thence  to  the  discovery  monument  and  repeating  in  the  other 
direction,  running  the  dotted  lines  as  shown  in  Fig.  15. 

Alaska,  California,  New  Mexico,  and  Utah  have  no  statutes  on 


62 


MINING  LAW 


the  time  allowed  to  stake  and  mark  boundaries,  and  it  would 
appear  that  the  claim  should  be  staked  at  once.  The  statutes  of 
Colorado,  North  Dakota,  South  Dakota,  and  Wyoming  state  that 
the  boundaries  shall  be  marked  before  "filing  location  certificate," 
the  time  for  this  filing  being  ninety  days  from  date  of  location  in 
Colorado  and  sixty  days  from  such  date  in  the  three  remaining 
States;  consequently,  that  length  of  time  is  impliedly  allowed 
for  marking  the  boundaries.  Idaho  allows  ten  days  to  stake, 
Nevada  allows  twenty  days,  Montana  and  Oregon  allow  thirty 
days,  while  Arizona  and  Washington  give  ninety  days.  It  is 
immaterial  if  the  staking  is  not  completed  within  the  statutory 
time,  provided  an  adverse  locaton  is  not  made  by  others  before 
the  staking  is  finished. 


o — 

Discovery 


Fig.  15 

A  claim  larger  than  that  allowed  by  the  Statute  is  not  void, 
except  in  case  of  fraud  or  a  mistake  of  the  grossest  kind  that 
presumes  fraud.  Where  the  purpose  was  to  make  the  claim  of 
the  statutory  size  and  the  error  occurred  inadvertently,  the  claim 
is  only  invalid  to  the  extent  of  the  excess.  In  the  case  of  a 
location  notice  calling  for  a  stated  number  of  feet  in  each 
direction  from  the  discovery  or  location  stake,  the  bounds  of 
the  valid  claim  can  easily  be  determined  by  measuring  off  the 
required  distances  in  both  directions  along  the  lode  line,  and 
undoubtedly  the  locator  can  be  held  to  his  description,  though 
in  the  absence  of  protests  and  adverse  claimants  he  can  elect 
where  the  excess  shall  be  deducted.  Where  the  claim  is  not 
laid  out  from  a  specified  point,  the  locator  will  have  the  right 
in  all  ordinary  cases  to  say  from  which  part  of  the  claim  the 
excess  may  be  deducted. 


CHAPTER  IX 

Lode    Location — Changing   Boundaries,    Amended   Loca 
tion,  Relocation 

A  locator  may  change  his  boundaries  or  the  name  of  his 
claim  at  any  time,  provided  he  does  not  interfere  wth  existing 
rights.  He  may  even  swing  his  claim  at  right  angles.  However, 
he  should  hold  substantially  to  the  same  ground  as  before,  and 
if  possible  use  the  same  discovery  or  location  point.  While  it 
is  clear  that  the  rights  of  others  shall  not  be  interfered  with 
in  changing  boundaries,  it  is  not  certain  what  would  be  the 
result  where  a  claim-owner,  having  done  the  amount  of  work 
required  for  patent  purposes  upon  his  claim,  should  swing  part 
of  his  claim  over  upon  the  valuable  locations  of  others  and 
immediately  ask  for  patent,  while  the  senior  locators  of  the 
ground  now  in  conflict  would  fail  to  adverse  through  presuming 
that  the  claim  up  for  patent  was  still  occupying  its  original 
position,  but  would  afterward  discover  their  loss.  The  only  re 
dress  that  appears  would  be  to  attempt  to  take  the  matter  into 
court  asking  that  the  patent  owner  be  declared  to  hold  the 
conflict  area  in  trust  to  be  conveyed  to  the  defrauded  locators. 

An  amended  location  notice,  not  a  relocation,  should  always 
be  placed  upon  the  ground  and  recorded,  when  changing  bound 
aries  in  any  way.  The  difference  between  an  amended  location 
and  a  relocation  should  be  fully  understood.  An  amended  loca 
tion  is  made  for  the  purpose  of  preserving  all  the  desired  rights 
and  privileges  obtained  by  the  original  location,  and  any  new 
desired  rights  that  can  be  lawfully  obtained  by  amending  the 
original  location.  A  relocation  is  a  new  location  of  the  ground 
of  a  former  and  abandoned  or  forfeited  location.  If  the  location 
is  made  by  the  owner  of  the  former  location,  it  is  technically 
a  waiver  of  all  rights  under  the  previous  location.  Still,  the 
exact  rights  under  a  relocation  by  the  original  locator  or  owner 

63 


64  MINING  LAW 

are  indeterminate,  for  both  miners  and  courts  hold  that  it  has 
some  relation  back  to  the  original  location,  the  strength  of  the 
relation  depending  mainly  upon  whether  any  adverse  claimant 
or  intervening  location  has  come  between  the  two  locations. 

By  making  a  relocation  instead  of  an  amended  location,  the 
value  of  any  previous  work  is  lost  for  patent  purposes,  possibly 
excepting  where  it  can  be  shown  that  the  relocation  is  virtually 
an  amended  location.  Where  a  discovery  shaft  is  required  to 
be  sunk  following  the  location,  a  relocation  will  require  such 
work  to  be  done,  whereas  an  amended  location  does  not.  The 
amended  location  notice  need  not  differ  materially  from  the  orig 
inal  location  notice,  with  the  exception  that  it  should  state 
clearly  that  it  is  an  amending  of  the  notice  and  preferably  speci 
fying  the  particular  changes.  Such  information  may  be  con 
tained  in  the  following,  inserted  as  the  final  paragraph  of 
the  notice: 

This  is  an  amended  location  made  for  the  purpose  of 
adjusting  the  boundaries  of  the  claim,  etc.     It  is  based 

on  the  original  location  made    ,  dating  all  rights 

from  the  original  location  and  waiving  none  obtained  by 
it  and  consistent  with  the  present  amended  location. 

Amended  locations  are  made  for  the  following  purposes:  (1) 
To  relinquish  or  acquire  contiguous  ground;  (2)  to  relinquish 
any  excess  area  or  take  in  the  maximum  area;  (3)  to  acquire 
the  overlap  of  a  prior  or  senior  location  now  open  to  acquisition 
through  abandonment  or  failure  to  perform  the  annual  labor; 
(4)  to  make  the  courses  and  distances  more  exact  or  the  lines 
parallel;  (5)  to  change  the  name  of  the  claim;  (6)  to  cure 
minor  defects  in  the  location;  (7)  to  add  the  names  of  new 
locators.  Dropping  the  names  of  old  locators  by  an  amended 
notice  or  a  relocation  is  unsafe.  The  relinquishment  of  each 
name  should  be  secured.  An  amended  location  may  be  treated 
as  an  original  location,  but  it  cannot  be  used  to  acquire  title 
where  the  original  location  was  void  for  some  basic  reason.  For 
instance,  a  location  invalid  because  made  on  ground  lawfully  held 
by  prior  locators,  cannot  be  perfected  by  an  amended  location 
made  after  the  prior  locators  have  abandoned  the  ground  or 


AMENDED  LOCATION— RELOCATION  65 

allowed  it  to  become  forfeitable.  In  this  case  a  new  location, 
a  relocation — since  it  is  of  a  claim  located  before — instead  of 
an  amended  location,  must  be  made  after  the  claim  is  open  to 
location;  for  a  location  to  be  good,  must  be  good  or  have  the 
elements  of  being  good  when  made.  So  also,  amending  cannot 
date  rights  back  to  the  original  to  cut  out  the  intervening  rights 
of  others  lawfully  acquired  between  the  original  and  the  amend 
ing  location.  But  where  a  valid  location  has  been  made  upon 
a  small  area  of  ground,  the  location  may  be  amended  to  take 
in  a  large  area  of  abandoned  or  forfeitable  ground;  or  a  claim 
having  the  basic  elements  of  a  valid  location  and  good  faith, 
may  be  amended  to  correct  technical  and  other  minor  errors. 
Properly,  a  former  and  forfeiting  locator  should  have  no  right 
to  locate  a  claim  that  he  is  liable  to  lose  through  his  failure 
to  perform  the  annual  labor,  since  by  repeated  relocating  he 
is  able  to  hold  ground  indefinitely  without  doing  any  develop 
ment  or  exploration  work  upon  it,  unless  the  State  statutes 
require  discovery  work.  Section  2324  of  the  Revised  Statutes 
says  that  if  the  annual  labor  is  not  performed  upon  the  claim, 
as  required  by  law,  it  "shall  be  open  to  relocation  in  the  same 
manner  as  if  no  location  of  the  same  had  ever  been  made;  pro 
vided,  that  the  original  locators,  their  heirs,  assigns,  or  legal 
representatives  have  not  resumed  work  upon  the  claim  after 
failure  and  before  such  location."  If  the  original  locator  or 
owner  relocates  a  claim  and  afterward  goes  to  work  upon  ,  it 
before  other  and  adverse  locations  are  made,  he,  without  doubt, 
by  resuming  work,  overcomes  any  illegality  of  his  relocation 
and  perfects  his  title.  But  the  status  of  the  ground  and  his 
rights  when  he  merely  makes  a  relocation  and  before  doing  any 
work  under  the  relocation,  is  doubtfuL  The  Supreme  Court  of 
Utah  held  that  the  Statute  did  not  authorize  discriminating  be 
tween  an  original  and  a  new  locator,  and  consequently  that  a 
man  could  relocate  his  ground  that  was  forfeitable  through  fail 
ure  to  do  the  annual  labor,  just  as  a  new  locator.  The  question 
as  to  whether  a  man  may  safely  relocate  his  own  claims  has 
not  been  sufficiently  passed  upon  by  the  courts  to  permit  an 
authoritative  answer.  The  opinion  is  that  while  such  reloca 
tions  may  be  voidable,  they  are  not  void.  Most  miners  severely 


66  MINING  LAW 

condemn  such  locations,  but  generally  do  not  try  to  overthrow 
them. 

The  mining  statutes  of  California  state  that  the  failure  or 
neglect  of  any  locator  of  a  mining  claim  to  perform  development 
work  of  the  character,  in  the  manner,  and  within  the  time  re 
quired  by  the  laws  of  the  United  States,  shall  disqualify  such 
locators  from  relocating  the  ground  embraced  in  the  original 
location  or  mining  claim  or  any  part  thereof  under  the  mining 
laws,  within  three  years  after  the  date  of  the  original  location, 
and  any  attempted  location  thereof  by  any  of  the  original  locat 
ors  shall  render  such  location  void. 


CHAPTER  X 

Lode  Location — Annual  Labor 

R.  S.,  Sec.  2324:  *  *  *  On  each  claim  located  after 
May  10,  1872,  and  until  a  patent  has  been  issued  there 
for,  not  less  than  $100  worth  of  labor  shall  be  performed 
or  improvements  made  during  each  year.  *  *  * 

ACT  OF  CONGRESS:  *  *  *  The  period  within 
which  the  work  required  to  be  done  annually  on  all  un- 
patented  mineral  claims,  shall  commence  on  the  first  day 
of  January  succeeding  the  date  of  location  of  such 
claims.  *  *  * 

The  'annual',  'representation',  or  'assessment'  work  required 
by  the  above  Statutes  is  one  of  the  principles  of  the  common  law 
of  mining  wherever  found.  It  was  originated  by  the  miner  that 
each  occupant  of  mineral  ground  might  show  his  good  faith  by 
doing  something  toward  developing  the  ground,  instead  of  hold 
ing  large  areas  without  exploration.  Its  wisdom  has  remained 
unquestioned  through  all  the  ebb  and  flow  of  criticisms  and  pro 
posed  changes  of  the  mining  law.  State  statutes  or  district  rules 
may  require  more  than  $100  worth  of  work,  but  they  cannot  fix 
the  amount  at  less.  The  first  annual  labor  must  be  performed 
in  the  calendar  year  following  the  calendar  year  in  which  the 
location  was  made.  Thus  a  claim  located  at  1  a.m.  in  the 
morning  of  January  1,  1910,  needs  no  annual  labor  during  1910, 
but  does  require  $100  worth  of  work  during  1911.  If  a  claim 
be  located  in  December  1910  and  discovery  work  valued  at  $100 
is  commenced  and  completed  in  1911,  the  discovery  work  answers 
for  the  necessary  annual  labor  for  1911. 

The  work  may  be  performed  upon  the  ground  of  the  claim. 
It  may  be  performed  off  the  claim,  but  upon  a  group  of  which 
the  claim  in  question  is  an  allied  member,  or  it  may  be  performed 
upon  ground  away  from  the  claim  and  not  included  in  the  group. 
In  the  first  case,  the  wisdom  or  expediency  of  the  improvement 

67 


68  MINING  LAW 

cannot  be  questioned  in  court.  In  the  latter  two  cases,  the  claim- 
owner  may  be  called  upon  to  show  that  the  work  or  improvement 
was  made  in  good  faith  and  purposes  to  develop  the  claim  in 
question.  Whether  the  work  does  or  does  not  tend  to  develop 
and  benefit  the  claim,  is  a  question  of  fact  to  be  decided  by 
the  jury.  Such  work  as  roads,  trails,  and  cabins  will  usually 
benefit  all  the  claims.  An  improvement  will  benefit  a  distant 
claim,  if  it  can  be  shown  that  the  improvement  is  part  of  a 
rational  development  plan,  which,  when  extended,  will  open  up 
and  develop  the  ground  of  the  distant  claim.  Where  a  single 
or  common  improvement  is  being  made  for  several  claims,  there 
is  no  specific  requirement  that  the  claims  be  contiguous,  but, 
as  in  the  case  of  an  improvement  made  for  a  claim  or  group, 
the  work  must  aim  to  develop  each  claim.  The  different  owners 
of  separate  groups  may  unite  without  merging  their  ownerships, 
to  perform  their  annual  labor  in  a  common  improvement  which 
will  jointly  develop  and  be  of  use  for  the  several  groups. 

The  nature  of  the  work  can  best  be  expressed  by  stating  that 
it  should  directly  or  indirectly  tend  to  develop  the  mineral  con 
tents  of  the  ground  and  facilitate  its  extraction  therefrom.  An 
nual  labor  and  work  for  patent  purposes  have  been  held  to  be 
similar,  but  there  is  a  difference  between  them  in  extreme  cases, 
because  a  liberal  construction  has  been  placed  upon  what  may 
constitute  annual  labor,  while  the  lines  have  been  drawn  tighter 
by  the  Land  Department  in  what  may  answer  for  patent  work. 
What  is,  or  is  not,  assessment  work,  must  be  interpreted  from 
the  decisions  of  the  courts  when  such  work  has  been  called 
into  question.  Excavations  made  in  attempting  to  open  up  and 
extract  mineral  are  the  best  kind  of  annual  labor.  Excavations 
of  some  size,  such  as  cuts  and  pits  made  in  prospecting,  are 
good,  but  when  these  are  reduced  in  size  to  the  holes  dug  by 
the  prospector  as  he  follows  the  float  or  colors  up  a  hillside  to 
a  ledge  or  vein,  they  are  not  applicable.  Apparently,  works  of 
a  permanent  nature  that  leave  some  trace  of  themselves,  and 
especially  that  tend  to  directly  improve  the  claim,  are  required. 
Wagon-roads  and  trails  are  applicable,  where  they  are  actually 
necessary  for  the  working  of  the  claims.  They  may  be  either 
on  the  claims  or  in  the  close  vicinity.  To  make  a  building 


ANNUAL  LABOR  .69 

erected  on  a  mining  claim  applicable  for  annual  labor,  it  must 
have  been  placed  there  for  the  purpose  of  benefiting  the  claim 
and  for  the  improvement  of  the  claim.  An  ore-house  built  on 
a  claim  for  the  benefit  of  an  adjoining  claim  was  rejected  as 
annual  labor  for  the  claim  upon  which  it  stood.  A  house  built 
at  a  point  200  feet  from  the  claim  and  subsequently  removed, 
was  rejected,  mainly  because  of  the  house  having  been  removed. 

The  following  has  been  rejected  as  annual  labor:  Work  done 
upon  a  claim  that  was  not  of  a  mining  character  and  was 
intended  for  other  purposes;  the  expenditure  of  time  and  money 
traveling  about  regarding  matters  connected  with  the  mining 
claim;  the  cost  of  reaching  the  claim;  the  sampling  and  testing 
of  rock;  the  hauling  of  material  and  supplies;  the  felling  of 
timber  not  used;  the  purchase  of  mining  supplies  which  were 
not  used;  the  cost  of  groceries  and  household  utensils.  The 
cost  of  tools  purchased  cannot  be  allowed,  since  they  do  not 
become  a  part  of  the  claim,  but  a  proper  charge  for  their  use 
or  part  use  is  correct.  Likewise,  the  cost  of  hauling  material 
and  supplies  used,  and  the  cost  of  groceries,  may  be  indirectly 
included  in  the  annual  labor  when  the  extent  to  which  they 
benefit  the  claim  is  determined  in  the  proper  way.  The  wages 
paid  or  allowed  to  a  watchman  whose  services  are  necessary 
to  keep  the  tunnels  and  drifts  open,  buildings  in  repair  and 
from  being  burnt  down,  machinery  from  ruin,  or  ore  from  being 
stolen  where  same  would  cave  and  destroy  the  workings  of  the 
mine,  are  allowable  where  it  is  desired  to  keep  the  property  In 
repair  to  resume  operations  later.  The  wages  paid  a  watchman 
are  allowable  in  those  cases  where  the  services  of  a  watchman 
will  keep  the  improvements  intact  and  from  deterioration  on 
the  same  basis  as  money  expended  to  create  them  anew.  But 
the  wages  of  a  watchman  looking  after  a  naked  claim,  or  there 
to  warn  away  prospectors,  or  where  it  cannot  be  shown  that 
a  watchman  is  needed,  will  not  be  allowed. 

The  miner  who  is  actually  trying  in  good  faith  to  develop 
the  mineral  resources  of  his  ground  is  not  liable  to  have  his 
work  questioned.  It  is  the  one  who  is  not  trying  to  develop 
his  ground,  but  is  frittering  away  the  time  he  spends  on 
his  claims  and  is  relying  on  the  supposed  technicalities  of  the 


70*  MINING  LAW 

law  or  the  well  known  popular  aversion  to  trying  to  prove 
that  a  man  has  not  done  his  annual  labor,  that  is  liable  to 
have  his  ground  adversely  located. 

Annual  labor  is  valued  by  what  it  is  reasonably  worth.  If 
the  work  is  reasonably  worth  $100,  the  fact  that  it  was  per 
formed  at  a  less  cost  is  not  derogatory.  Whether  the  work  has 
been  paid  for  or  not  is  immaterial,  just  so  it  has  been  per 
formed.  The  work  may  be  done  by  anyone  interested  in  the 
claim,  or  may  be  contributed  by  outside  parties.  When  the 
annual  labor  for  a  group  is  performed  all  upon  one  claim,  it 
is  presumed  that  the  work  benefits  that  claim  first  and  the 
other  claims  in  the  order  of  their  relation  to  the  first  claim 
or  relative  benefit  by  the  work.  Thus,  should  the  work  be  ques 
tioned  in  court  and  found  insufficient  to  benefit  all  the  claims, 
it  would  be  held  that  those  claims  most  directly  benefited  should 
take  credit  in  the  order  of  the  benefit  received  until  the  allow 
ance  was  exhausted,  thus  rendering  the  more  remotely  benefited 
claims  forfeitable.  The  fact  that  $500  worth  of  improvements 
have  been  made  upon  the  claim  gives  no  reason  for  not  perform 
ing  the  annual  labor. 

Annual  Labor  Pending  Patent  Proceedings* 

The  process  of  patenting  or  obtaining  the  fee  title  to  mining 
claims  held  by  location  or  possessory  right  may  be  divided  into 
three  steps  or  stages.  (1)  The  application  to  the  surveyor- 
general  of  the  land  district  for  an  official  patent  survey,  followed 
by  the  field  work  of  the  deputy  mineral  surveyor,  and  it  in 
turn  by  the  checking  and  the  approval  of  the  survey  by  the 
surveyor-general  and  his  official  filing  of  the  notes  and  plat. 
(2)  The  filing  of  the  approved  survey  with  the  local  land  office, 
together  with  the  application  for  mineral  patent  to  the  land 
embraced  in  the  survey,  followed  by  all  the  various  proceedings, 
including  opportunity  to  file  adverse  claims,  as  required  by  the 
Land  Department  in  its  efforts  to  see  that  the  laws  are  complied 
with  and  the  rights  of  other  miners  are  protected.  (3)  The 
entry  for  patent  by  paying  the  purchase  price  for  the  land  at 

*From  Mining  and  Scientific  Press,  May  28,  1910. 


ANNUAL  LABOR  71 

the  local  land  office  and  receiving  therefor  the  receiver's  cer 
tificate  or  receipt,  to  be  exchanged  for  the  patent  upon  its 
issuance. 

By  the  first  step  the  applicant  acquires  no  further  right  to 
the  ground,  beyond  that  contained  in  his  possessory  right,  than 
such  additional  constructive  right  as  the  better  marking  of  his 
claim  and  the  official  filing  of  its  exact  position  and  boundaries 
may  give.  There  is  also  the  further  safety  given  by  the  officially 
marked  posts,  which  will  lead  many  to  believe  that  the  claims 
are  patented.  No  compulsion  upon  the  claimant  exists  to  pro 
ceed  further  toward  patent. 

Prominent  in  the  second  step  is  the  filing  of  adverse  claims 
against  the  proposed  patent  by  those  who  claim  the  ground 
or  portions  of  it  by  other  and  adverse  locations  to  the  one 
entered  for  patent.  Adverse  claims  must  be  filed  at  the  local 
land  office  during  the  sixty  days  of  publication  of  the  notice  of 
application  for  patent.  They  may  be  fought  out  in  the  courts 
later.  Also  prominent  in  the  second  step  is  any  protest  made 
by  the  employees  of  the  Government  or  by  private  parties  against 
granting  patent  on  the  ground  that  the  Federal  Statutes  and 
the  regulations  of  the  General  Land  Office  have  not  been  com 
plied  with.  The  protest  may  be  initiated  at  any  time  after 
application  for  patent  and  up  to  its  issuance,  to  be  fought  out 
before  the  register  and  receiver  of  the  local  land  office.  After 
the  adverse  suits  and  pending  protests  have  been  disposed  of 
and  the  local  land  office  is  able  to  ascertain  what  ground  the 
applicant  is  entitled  to  under  the  law,  he  is  allowed  to  take 
the  last  step  of  making  final  entry  and  receiving  the  receiver's 
receipt  in  temporary  lieu  of  the  patent  document  which  will 
arrive  later  from  Washington. 

The  status  of  the  claim  with  reference  to  performance  of  annual 
labor  or  assessment  work  during  the  second  and  third  steps — 
the  steps  for  obtaining  patent  proper — is  not  entirely  clear.  The 
Statute  says,  "on  each  claim  located  *  *  *  and  until  a  patent 
has  been  issued  therefor,  not  less  than  $100  worth  of  labor  shall 
be  performed  or  improvements  made  during  each  year."  The 
courts  have  recognized  that  there  is  great  delay  in  issuing  the 
patent  document,  which  is  largely  a  clerical  matter,  and  conse- 


72  MINING  LAW 

quently  have  held  that  when  issued,  its  rights  date  from  the  time 
of  making  final  entry  by  paying  the  purchase  price  for  the  land 
and  receiving  the  receiver's  receipt  and  the  final-entry  certificate. 
Consequently  it  appears,  and  the  decisions  are  to  the  effect,  that 
a  relocation  of  a  claim  cannot  be  made  because  of  the  failure  to 
perform  annual  labor  after  date  of  final  entry,  and  that  making 
final  entry  relieves  the  applicant  of  performing  annual  labor,  pro 
vided  the  patent  document  is  eventually  issued.  But  if  the  re 
ceiver's  receipt  is  cancelled  on  grounds  of  fraud  and  patent  there 
for  does  not  issue,  the  claim  is  in  the  position  of  never  having 
made  a  final  entry  and  consequently  is  subject,  and  has  been 
subject  at  any  time,  to  any  relocation  that  could  be  made  for 
non-performance  of  annual  labor,  just  as  a  location  not  going 
through  the  patenting  process.  In  a  case  where  the  applicant  was 
not  guilty  of  fraud,  but  the  final  entry  was  cancelled  because  of 
an  insufficient  publication  of  the  notice  of  application  for  patent 
which  did  not  reflect  upon  the  honesty  and  good  faith  of  the 
applicant,  and  he  was  required  to  begin  publication  anew,  the 
court  held  that  the  applicant  had  a  right  to  rely  on  his  final 
entry  and  the  expected  issuance  of  the  patent  document  to  excuse 
him  from  performing  the  annual  labor.  This  is  the  right  view, 
but  it  is  not  certain  that  the  courts  will  always  hold  to  it.  It 
seems  fairly  certain  that  the  honest  applicant  need  not  perform 
any  annual  labor  after  final  entry  for  patent,  and  that  is  the 
way  patent  applicants  usually  proceed,  but  full  surety  is  found 
only  in  carrying  on  annual  labor  to  date  of  issuing  the  patent 
document. 

In  this  connection  it  is  necessary  to  consider  the  position  of 
the  Land  Department  and  the  time  when  entry  may  be  made. 
The  Land  Department  has  recognized  that  final  entry  cannot 
always  be  made  immediately  after  the  expiration  of  the  period 
of  publication  of  application  for  patent,  since  adverse  suits  and 
protests  often  drag  out  for  a  few  years;  but  until  these  are 
settled,  it  cannot  allow  final  entry,  for  it  does  not  know  what 
ground,  if  any,  the  applicant  is  entitled  to  patent.  When  final 
entry  becomes  allowable  through  the  expiration  of  the  publica 
tion  period  if  there  are  no  adverse  or  protests  pending,  or  through 
the  termination  of  adverse  suits  in  court  or  protest  proceedings 


ANNUAL  LABOR  73 

in  the  Land  Department,  it  allows  to  the  end  of  the  then  cur 
rent  calendar  year  to  make  entry,  whether  the  time  be  only  a 
day  or  several  months.  Thus  if  the  publication  period  and  any 
adverse  suits  or  protests  end  January  30  or  December  30,  the 
applicant  should  make  final  entry  on  or  before  December  31. 
If  he  delays  into  the  next  year,  he  does  so  at  the  peril  of  losing 
all  rights  gained  under  the  patent  application.  If  the  delay  is 
trivial,  he  may  only  be  required  to  show  that  no  relocation  of 
the  claim  was  made.  If  the  delay  is  material,  he  may  have  his 
application  cancelled  and  be  required  to  begin  application  anew. 

After  the  expiration  of  the  year  in  which  final  entry  should  be 
made,  but  is  not,  the  Land  Department  will  receive  a  protest 
against  the  entry  being  allowed  upon  the  ground  that  the  claim 
is  now  the  possession  of  another  through  relocation  for  non- 
performance  of  the  annual  labor  for  the  previous  year;  the  pro 
test  being  made  with  a  view  to  cancelling  the  application  or  final 
entry  so  that  a  new  application  and  publication  will  be  required, 
allowing  the  protestant  a  chance  to  adverse  and  litigate  his 
rights  in  court.  Where  the  protesting  relocator  cannot  get  his 
protest  accepted  by  the  Land  Department,  he  can  yet  attempt  to 
get  the  courts  to  declare  the  patent  applicant  a  trustee  of  the 
claim  to  convey  it  to  him. 

It  would  appear  unjust  to  require  the  patent  applicant  who 
intends  to  make  final  entry  within  the  calendar  year  allowable, 
to  continue  annual  labor  during  the  years  that  adverse  suits  and 
protests  may  drag  out,  and  there  is  a  slight,  though  very  slight, 
possibility  that  the  courts  may  protect  him  in  case  he  has  not 
performed  this  work,  though  the  courts  are  limited  by  the 
Statute  reading  "until  a  patent  therefor  has  issued."  The  un- 
justness  of  the  principle  may  be  illustrated  in  this  way.  For 
various  reasons  nearly  all  applications  for  patent  are  made  in 
the  latter  part  of  the  year,  and  the  period  between  the  end  of 
publication  and  the  close  of  the  then  current  calendar  year  is 
often  only  a  few  days,  while  in  the  majority  of  cases  the  annual 
labor  for  the  year  has  not  been  done  or  an  insufficient  amount 
has  been  performed;  reliance  being  placed  on  final  entry  to  be 
made  that  year.  It  would  be  easy  for  one  hostile  to  the  patent 
applicant  to  file  an  adverse  or  a  protest  so  that  the  applicant 


74  MINING  LAW 

could  not  make  entry  that  year.  As  a  result  the  applicant  would 
have  to  commence  work  on  the  claims — where  no  annual  labor  or 
an  insufficient  amount  had  been  performed  that  year — in  the 
heart  of  the  winter,  often  an  'almost  impossible  thing,  to  pre 
vent  them  from  being  validly  located  after  the  first  of  the  year 
by  the  hostile  or  other  party. 

Proof  of  Labor 

The  statutes  of  most  States  have  arranged  for  the  filing  of  a 
'Proof  of  Labor'  with  the  county  recorders  and  local  mining  dis 
trict  recorders  where  the  claim  is  situated.  This  is  the  affidavit 
of  the  claim-owner,  his  agent,  the  person  who  has  performed 
the  work,  or  other  interested  party  cognizant  of  the  facts,  stating 
that  the  annual  labor  has  been  performed  upon  the  claim  or 
claims  as  required  by  law.  The  making  and  filing  of  this  is 
directory  only,  not  mandatory.  It  is  prima  facie  evidence  that 
the  work  has  been  done,  and  throws  the  burden  of  proof  upon 
one  asserting  that  it  has  not  been  performed;  whereas  failure 
to  file  the  affidavit  is  considered  to  throw  the  burden  of  proving 
.the  work  was  performed  upon  the  claim-owner,  but  does  not 
in  any  way  throw  the  claim  open  to  relocation  by  others. 

The  period  in  which  to  file  varies  with  the  States.  North 
Dakota,  South  Dakota,  and  Oregon  have  no  'Proof  of  Labor' 
statutes.  Montana  allows  twenty  days  after  completion  of  work 
within  which  to  file.  Utah  allows  thirty  days  after  work  is  per 
formed.  Wyoming  and  Nevada  allow  sixty  days  after  comple 
tion.  California  and  Washington  allow  thirty  days  after  the  an 
nual  labor  period.  Arizona  allows  three  months  and  Colorado 
six  months  after  the  annual  labor  period.  Idaho  and  New  Mexico 
allow  sixty  days  after  the  annual  labor  period.  The  Federal 
Statutes  or  regulations  make  no  reference  in  any  way  to  'Proofs 
of  Labor,'  outside  of  allowing  ninety  days  after  close  of  year  to 
file  'Proof  of  Labor'  in  Alaska. 

A  single  affidavit  is  usually  filed  for  a  group  of  claims,  in 
stead  of  an  affidavit  for  each  claim.  A  complete  'Proof  of  Labor' 
affidavit  should  contain:  Name  of  claim  or  claims  and  their 
location;  dates  between  which  the  labor  was  performed;  where 
labor  was  performed;  description,  amount,  and  value  of  the  labor; 


ANNUAL  LABOR  75 

purpose  of  the  labor;  by  whom  performed;  for  whom  performed 
and  at  whose  expense.  These  are  contained  in  the  following 
form,  to  which  some  States  would  require  the  actual  amount 
paid  and  by  whom  paid. 

PROOF  OF  LABOR  AFFIDAVIT 
STATE  OF  UTAH,  ) 

V.  oc 

County  of  Salt  Lake.j  bk 

James  Grant,  of  Salt  Lake  City,  being  first  duly  sworn, 
deposes  and  says: 

That  he,  together  with  Wm.  Fitzgerald  and  Bernard 
Stevens,  performed  the  annual  labor  for  the  year  1910 
upon  the  Fulton,  Dolly  Dimple,  and  King  Pin  lode  claims 
in  the  Snake  Creek  Mining  District,  Summit  County, 
Utah. 

That  said  labor  consisted  of  ninety  days  work  between 
August  10,  1910,  and  October  1,  1910,  together  with 
powder  and  other  necessary  mining  supplies  to  the 
amount  of  over  $30.  ^ 

That  said  labor  was  performed  in  a  tunnel  on  the 
south  end  of  the  Dolly  Dimple  claim,  in  extending  said 
tunnel  30  ft.  from  a  point  100  ft.  from  portal  to  point 
130  ft.  from  portal,  thereby  removing  over  720  cubic  feet 
of  solid  rock. 

That  said  labor  was  performed  for  and  at  the  expense 
of  the  Golden  Cross  Mining  Co.,  and  at  the  request  of 
its  president,  Bartley  McDonough. 

(Signed)     JAMES  GRANT. 

Sworn  and  subscribed  to  before  me  this  eighteenth 
day  of  October,  1910.  GEORGE  L.  PARKS, 

Notary  Public. 


CHAPTER  XI 

Lode  Location — Resumption  of  Work,  Forfeiture, 
Abandonment 

R.  S.,  Sec.  2324:  *  *  *  Upon  a  failure  to  comply 
with  these  conditions  [the  requirement  of  annual  labor], 
the  claim  or  mine  upon  which  such  failure  occurred, 
shall  be  open  to  relocation  in  the  same  manner  as  if 
no  location  of  the  same  had  ever  been  made;  provided, 
that  the  original  locators,  their  heirs,  assigns,  or  legal 
representatives,  have  not  resumed  work  upon  the  claim 
after  failure  and  before  such  location.  *  *  * 

By  failing  to  do  his  annual  labor,  the  claim-owner  does  not 
lose  or  forfeit  his  claim;  it  only  becomes  forfeitable  by  him 
and  locatable  by  others.  It  is  only  when  it  has  been  appropri 
ated  by  another  through  a  new  location — a  relocation — that  it 
is  lost  and  forfeited  by  the  old  owner.  Up  to  the  time  of 
relocation,  the  old  owner  may,  by  resuming  work  upon  the 
claim,  redeem  his  claim  from  being  forfeitable,  as  provided  by 
the  above  Statute.  Even  after  relocation  has  begun,  and  while 
the  various  acts  of  location  prescribed  by  Federal  and  State 
statutes  are  being  completed  within  the  alloted  time,  the  old 
locator  may  resume  work  at  any  time  before  the  completion  of 
all  the  acts  of  relocation,  and  thereby  render  the  attempted  re 
location  void,  except  in  Montana,  where  a  forfeiting  claimant 
cannot  resume  work  after  a  relocator  has  posted  his  notice. 

The  resumption  may  take  place  at  any  time,  perhaps  years 
after  any  previous  work  has  been  performed,  but  presumes  that 
there  has  been  no  abandonment  of  the  claim  nor  any  interven 
ing  location.  By  resuming  work,  the  miner  dates  his  rights 
back  to  his  location,  except  where  he  had  abandoned  the  claim, 
or  where  there  has  been  an  intervening  location  which  has  be 
come  forfeitable  through  failure  to  do  the  annual  labor.  The 
76 


RESUMPTION  OF  WORK  77 

status  of  the  claim  after  resumption  under  these  exceptions  is 
not  clear.  While,  of  course,  the  claim  can  be  patented  if  no 
question  is  raised,  the  better  view,  especially  in  the  case  of 
where  there  has  been  an  intervening  relocation  by  others,  is 
that  a  resumption  will  not  date  the  rights  back  beyond  the  in 
tervening  location  or  abandonment,  and  that  in  consequence  a 
new  location  should  be  made. 

The  principle  of  resuming  work  at  or  just  before  the  moment 
a  claim  becomes  forfeitable  is  used  to  save  a  claim  from  reloca 
tion  by  others.  As  the  annual  labor  preserves  the  possessory 
right  by  calendar  years,  it  follows  that  if  the  work  is  not 
performed  during  any  year  (following  the  year  location  is  made), 
the  claim  becomes  forfeitable  at  and  after  12  o'clock  midnight 
of  December  31  of  that  year.  If  the  miner,  who  has  failed  to 
do  his  annual  labor,  arrives  on  the  claim  on  December  31  or 
before,  and  begins  work  which  he  prosecutes  during  the  usual 
work  hours,  returning  on  the  following  morning  of  January  1 
and  continuing  work  with  due  diligence  until  $100  worth  of 
work  has  been  performed  during  the  new  year,  he  has  made 
such  a  resumption  of  work  as  will  render  void  any  attempted 
location  after  midnight  of  December  31,  or  throughout  the  new 
year.  It  is  not  necessary  to  do  $100  worth  of  work  for  the  old 
year  and  another  such  amount  for  the  new  one.  The  resumption 
of  work  coupled  with  the  possession  of  the  claim,  has  taken 
care  of  the  old  year,  while  the  doing  of  $100  worth  of  work 
during  the  new  year  constitutes  the  annual  labor  for  that  year. 
If  the  miner  arrives  at  his  claim  at  11  p.m.  on  December  31, 
begins  work  before  midnight  which  he  continues  into  the  next 
day  and  thereafter  with  due  diligence,  he  has  kept  his  claim 
from  becoming  forfeitable.  Just  what  is  due  diligence  cannot 
be  denned;  the  resumption  should  be  substantial  and  fairly 
promptly  performed,  until  it  amounts  to  $100  per  claim.  The 
resumption  of  work  followed  by  the  performance  of  a  satisfac 
tory  amount  of  work,  validates  the  claim  to  date,  so  far  as 
the  annual  expenditure  is  required,  no  matter  how  many  of 
the  previous  years  were  without  work.  Whether  a  claim  is 
forfeitable  on  account  of  non-performance  of  annual  labor,  de 
pends  on  one  question  only,  was  the  labor  for  the  previous  year 


78 


MINING  LAW 


done?     If  it  was  performed,  then  the  fact  that  it  was  not  done 
in  years  prior  to  that  year,  has  no  weight  whatever. 

An  important  question  arises  in  the  case  of  a  newer  or  junior 
location  overlapping  an  older  or  senior  location,  as  illustrated 
by  Fig.  16.  If  the  holder  of  the  senior  location  fails  to  perform 


Pig.  16 


his  annual  labor,  does  the  overlap  or  area  in  conflict  at  once 
become  part  of  the  junior  location,  or  in  case  the  owner  of 
the  junior  location  does  not  make  an  amended  location  to  take 
in  the  overlap,  can  the  senior,  by  resuming  work,  retain  the 
overlap,  or  can  a  relocation  of  the  senior  claim  by  others  hold 
that  overlap?  The  decisions  are  conflicting,  but  it  would  appear, 
following  the  principle  that  a  location,  to  be  valid,  must  be 
valid  when  made,  and  that  a  valid  location  definitely  carves  out 
and  sets  aside  a  piece  of  ground,  that  the  senior  claim  would 
remain  intact  as  located,  until  some  part  of  it  was  specifically 
and  validly  appropriated,  while  the  junior  claim  would  contain 
nothing  but  what  it  appropriated  when  first  made,  except  a  new 
and  additional  appropriation  be  made,  which  would  require  an 
amended  location. 

Forfeiture  and  abandonment  are  not  the  same.  In  the  case 
of  forfeiture,  the  forfeiting  owner  has  simply  failed  to  comply 
with  the  law,  and  in  consequence  loses  the  claim  upon  its  re 
location  by  others.  But  in  the  case  of  abandonment,  the  miner 
gives  up  all  his  rights  and  privileges  incident  to  the  claim,  in 
tending  to  have  nothing  more  to  do  with  it,  and  allowing  it 


RESUMPTION  OP  WORK  79 

to  become  public  domain  again.  Abandonment  may  be  made 
in  two  ways,  by  a  verbal  or  written  statement,  or  by  leaving 
the  claim  with  the  intention  of  not  returning  and  putting  no 
more  work  or  care  upon  it.  In  the  first  case,  relocation  may  be 
made  at  once  by  a  second  party,  even  if  the  abandoning  owner 
had  performed  the  annual  labor  for  that  year.  In  the  second 
case  it  is  practically  impossible  to  prove  the  intent  to  abandon, 
consequently  relocation  should  only  be  made  when  the  claim 
becomes  forfeitable,  for  the  old  owner  might  return  and  at 
tempt  to  claim  the  ground  at  any  time  up  to  that  point.  It 
has  been  said  that  a  forfeiture  cannot  be  established,  except 
upon  clear  and  convincing  proof  of  the  failure  of  the  former 
owner  to  have  work  performed  or  improvements  made  to  the 
amount  required  by  law.  To  establish  abandonment,  likewise 
requires  positive  proof  of  the  intention  to  abandon.  The  burden 
of  proof  is  upon  the  party  alleging  forfeiture  or  abandonment. 

A  relocation  of  an  abandoned  claim  by  one  of  the  abandoning 
co-owners  is  valid;  but  an  abandonment  and  relocation  to  avoid 
doing  the  annual  labor,  is  invalid.  Where  a  co-owner  relocates 
a  forfeitable  claim  for  himself,  and  hostile  to  the  other  co- 
owners,  he  holds  the  claim  as  a  trustee  for  all  the  owners;  In 
other  words,  he  cannot  'locate  his  partners  out.'  An  agent  or 
employee  cannot  betray  his  trust  and  make  a  relocation  of  a 
claim  he  is  empowered  to  care  for.  Also,  where  a  claim-owner 
employs  a  second  party  to  do  the  annual  labor,  and  the  second 
party,  unknown  to  the  claim-owner,  fails  to  perform  the  an 
nual  labor,  apparently  the  claim  does  not  become  open  to  re 
location,  especially  where  the  owner  upon  learning  that  the  work 
was  not  performed,  immediately  proceeds  to  do  it;  the  courts 
have  given  varying  opinions  on  this  subject. 

Forfeiture  by  Co-owners 

R.  S.,  Sec.  2324:  *  *  *  Upon  the  failure  of  any 
one  of  several  co-owners  to  contribute  his  proportion  of 
the  expenditures  required  hereby  [the  annual  labor],  the 
co-owners  who  have  performed  the  labor  or  made  the 
improvements,  may,  at  the  expiration  of  the  year,  give 
such  delinquent  co-owner  personal  notice  in  writing  or 
notice  by  publication  in  the  newspaper  published  nearest 


80  MINING  LAW 

the  claim  for  at  least  once  a  week  for  ninety  days,  and 
if  at  the  expiration  of  ninety  days  after  such  notice  in 
writing  or  by  publication,  such  delinquent  should  fail 
or  refuse  to  contribute  his  proportion  of  the  expenditure 
required  by  this  section,  his  interest  in  the  claim  shall 
become  the  property  of  his  co-owners  who  have  made 
the  required  expenditures. 

In  'advertising  out'  a  co-owner,  the  demand  can  only  be  made 
for  the  co-owner's  share  of  the  work  at  the  rate  of  $100  per 
claim.  If  more  than  $100  per  claim  was  spent,  the  co-owner's 
refusal  to  contribute  on  a  basis  of  more  than  $100  cannot  be 
used,  under  the  Statute,  to  work  a  forfeiture  of  his  rights 
in  the  claim.  It  appears  that  if  a  certain  co-owner  or  co-owners 
have  the  work  performed,  any  forfeited  ownerships  will  inure 
to  them  solely,  instead  of  being  also  apportioned  among  the  other 
co-owners  who  may  subsequently  offer  to  pay  their  share  toward 
the  forfeited  portions.  If  the  demand  is  made  by  personal  notice 
in  writing,  the  delinquent  has  ninety  days  within  which  to 
respond  and  pay  his  portion.  If  the  demand  is  made  by  publi 
cation  for  ninety  days  in  the  newspaper  published  nearest  the 
claim,  as  should  always  be  done  if  the  delinquent  cannot  be 
readily  found  or  reached,  the  delinquent  has  ninety  days  from 
expiration  of  period  of  publication  within  which  to  respond. 

FORFEITURE    NOTICE 

To  Wm.  Barnwell: 

You  are  hereby  notified  that  I  have  expended  $100  in 
labor  and  improvements  upon  the  Copper  Globe  lode- 
mining  claim  in  the  West  Mountain  Mining  District, 
Salt  Lake  county,  Utah,  in  doing  the  annual  labor  re 
quired  by  law  to  be  performed  during  the  year  1910. 

If,  within  ninety  days  from  the  personal  notice,  or 
if  personal  notice  is  not  made  upon  you,  then  within 
ninety  days  after  the  period  of  publication  thereof,  you 
fail  or  refuse  to  contribute  your  proportion,  which 
amounts  to  $50,  your  interest  in  the  claim  will  become 
the  property  of  the  subscriber,  your  co-worker,  who  has 
made  the  expenditure.  R.  V.  STEWART. 

The  notice  of  forfeiture  should  be  recorded  together  with  the 
proof  of  service  and  non-payment — the  affidavit  of  the  co-owner 


RESUMPTION  OF  WORK  81 

making  the  expenditure  to  the  effect  that  the  notice  of  forfeiture 
was  personally  served  and  that  payment  was  not  made  within 
the  statutory  time.  If  the  notice  of  forfeiture  has  been  given 
by  publication,  then  instead  of  proof  of  service  and  non-payment, 
the  affidavit  of  the  publisher  stating  that  the  notice  was  pub 
lished  as  required  by  law — the  proof  of  publication — and  the  affi 
davit  of  non-payment  made  by  the  co-owner,  should  be  filed. 


CHAPTER  XII 
Millsite  Location 

R.  S.,  2337:  Where  non-mineral  land,  not  con 
tiguous  to  the  vein  or  lode,  is  used  or  occupied  by  the 
proprietor  of  such  vein  or  lode  for  mining  or  milling 
purposes,  such  non-adjacent  surface  ground  may  be  em 
braced  and  included  in  an  application  for  a  patent  for 
such  vein  or  lode,  and  the  same  may  be  patented  there 
with,  subject  to  the  same  preliminary  requirements  as 
to  survey  and  notice  as  are  applicable  to  veins  or  lodes; 
but  no  location  hereafter  made  of  such  non-adjacent 
land,  shall  exceed  five  acres,  and  payment  for  the  same 
must  be  made  at  the  same  rate  as  fixed  by  this  chapter 
for  the  superficies  of  the  lode.  The  owner  of  a  quartz 
mill  or  reduction  works,  not  owning  a  mine  in  connec 
tion  therewith,  may  also  receive  a  patent  for  his  mill- 
site,  as  provided  in  this  section. 

The  above  section  provides  for  two  kinds  of  millsites — mill- 
sites  as  appendages  to  mining  claims  for  their  better  develop 
ment  and  working,  which  may  be  used  for  any  purpose  inci 
dental  to  the  mining  and  reduction  of  ores,  and  millsites  for 
mills  and  reduction  works  independent  of  mining  claims,  which 
must  be  used  for  sites  for  reducing  ores. 

The  land  must  be  non-mineral.  Following  the  rule  of  the 
Land  Department  that  the  land  should  be  put  to  its  most  useful 
purpose,  this  means  that  the  land  must  be  more  valuable  for 
the  millsite  purposes  to  which  it  has  been  put  than  for  its 
mineral.  As  the  value  of  an  undeveloped  mining  claim  is  highly 
speculative,  to  say  the  least,  it  would  be  best,  should  the  land 
contain  mineral-bearing  formations  and  a  mineral  discovery  can 
be  made — where  it  is  essentially  mineral  in  character — to  locate 
it  as  a  lode  claim,  even  should  the  claim  be  wanted  for  mill- 
site  purposes  and  meet  the  test  mentioned  before.  The  Statute 
undoubtedly  contemplates,  and  the  Land  Department  must  be 
82 


MILLSITB  LOCATION  83 

Considered  as  preferring,  that  ground  which  may  be  deemed 
worthy  of  prospecting,  shall  be  located,  held,  and  patented  under 
the  lode  or  placer  laws,  and  only  ground  which  may  not  be 
deemed  worthy  of  prospecting,  that  seems  almost  without  ques 
tion  to  have  no  possible  mineral  value,  should  be  located  under 
the  millsite  law,  especially  the  first  class  of  millsites.  It  appears 
that  a  millsite  location,  valid  by  reason  of  being  made  in  good 
faith  on  ground  having  a  nonmineral  character — not  known  to 
be  valuable  for  mineral  at  time  location  was  made  and  perfected — 
cannot  be  cancelled  or  impaired  by  a  subsequent  discovery  of 
mineral  in  nominal  quantity,  and  by  the  placing  of  a  conflicting 
lode  or  placer  location,  though  it  is  not  fully  settled  that  a 
valuable  mineral  deposit  discovered  after  millsite  location  can 
not  be  located  as  lode  or  placer  by  others.  After  patent  there 
can  be  no  question  but  that  all  mineral  which  may  be  found  be 
longs  to  the  patentee.  To  defeat  a  millsite  location,  it  would 
be  necessary  to  show  that  the  ground  was  known  mineral  land 
at  time  location  was  made  and  perfected;  it  might  even  be 
necessary  to  show  that  it  was  valuable  mineral  land.  A  mill- 
site  location  cannot  be  defeated  by  a  subsequent  agricultural 
entry,  nor  can  a  millsite  location  defeat  a  prior  and  existing 
agricultural  entry. 

The  Statute  says  that  a  millsite  shall  not  be  adjacent  to  the 
vein  or  lode.  The  Land  Department  has  interpreted  this  as  being 
an  attempt  to  prevent  the  obtaining  of  further  mineral  ground 
under  an  improper  location  or  entry,  and  has  ruled  that  a  mill- 
site  may  be  in  contact  with  the  side  line  of  a  claim  if  it  is  clearly 
not  an  appropriation  of  more  mineral  ground,  that  is,  the  mill- 
site  must  be  strictly  non-mineral.  A  further  application  of  this 
principle  would  allow  locating  and  patenting  millsites  in  contact 
with  the  end  lines,  where  it  can  be  conclusively  shown  that  the 
millsite  is  non-mineral  and  that  its  entry  should  be  allowed. 

Since  the  Statute  is  silent  regarding  the  method  of  locating 
millsites,  it  is  customary  to  follow  very  much  the  same  methods 
as  in  making  a  lode  location.  Millsites  should  be  square  or  rec 
tangular  with  a  post  at  each  corner.  A  single  millsite  cannot  ex 
ceed  five  acres  in  area.  Five  acres  equals  a  tract  466.7  ft.  square, 
or  217,800  sq.  ft.  A  location  notice  should  be  placed  upon  the 


84  MINING  LAW 

ground  and  also  recorded.  Millsites  are  usually  named  after  the 
claim  or  group  to  which  they  'are  appended.  When  a  claim  or 
group  including  a  millsite,  is  surveyed  for  patent,  the  same 
survey  number  is  used  for  both,  but  the  number  on  the  lode 
locations  is  followed  by  A,  as  '4785  A',  while  the  same  number 
used  on  the  millsite  is  followed  by  B,  as  '4785  B'.  Letters  are 
also  used  in  patent  surveys  in  some  surveyor-general  offices 
when  lodes  and  placers  are  included  in  the  same  application. 
Millsites  may  be  located  at  the  time  of  location  of  their  lode 
claim  or  claims,  or  at  any  time  thereafter,  even  after  patent. 
A  single  mining  claim  is  entitled  to  a  millsite  location.  A  group 
of  mining  claims,  according  to  the  rulings  of  the  Land  Depart 
ment,  is  entitled  to  as  many  millsite  locations  as  it  actually  and 
reasonably  needs,  and  no  more.  Consequently  not  more  than 
one  millsite  location  should  be  made  in  connection  with  a  group 
of  lode  claims,  unless  the  locator  is  able  to  show  in  subsequent 
entry  for  patent  or  adverse  suits,  that  all  of  such  claims  are 
necessary. 

No  discovery  work,  annual  labor,  or  patent  work  is  required 
upon  millsites.  The  possessory  right  to  those  of  the  first  class 
is  dependent  upon  the  possessory  right  to  the  lode  locations  to 
which  they  are  appended.  If  the  required  work  is  not  performed 
upon  the  lode  locations  and  they  thereby  become  forfeitable,  the 
millsite  is  also  forfeitable.  But  while  no  development  work  or 
annual  labor  is  required  upon  millsite  locations  of  the  first  class, 
some  use  for  mining  or  reduction  purposes  is  requisite  to  their 
possession  until  patented.  Such  use  may  be  the  erection  of  a  mill 
or  other  reduction  works;  the  storing  of  ore;  the  pumping  of 
water;  the  erection  and  use  of  a  living  cabin,  a  bunk-house,  or 
shops;  the  dumping  of  water  or  banking  of  tailings  or  waste. 
Uses  foreign  to  those  incidental  to  mining  or  ore-reduction  will 
not  suffice.  Under  some  conditions  storage  of  water  may  be 
counted,  but  not  under  others.  Millsites  cannot  be  located  for 
the  timber  upon  them  only,  for  uses  disconnected  entirely  from 
the  lode  claim,  to  be  turned  over  to  another  party,  or  to  secure 
water-rights  that  are  properly  obtained  under  the  laws  of  water- 
appropriation  and  protected  by  Sections  2339  and  2340  of  the 
Revised  Statutes,  as  wells,  springs,  dams,  or  reservoirs. 


MILLSITE  LOCATION 


85 


Millsites  of  the  second  class,  those  having  no  connection  or 
association  with  a  lode  claim,  cannot  be  patented  unless  each 
millsite  has  a  mill  or  other  reduction  works  upon  it.  Plants  of 
another  nature,  even  though  of  service  to  a  mill  or  mine,  or  other 
uses  of  the  claim,  will  not  satisfy  the  law.  . 


CHAPTER  XIII 

Placer  Location 

R.  S.,  Sec.  2329.  Claims  usually  called  'placers',  in 
cluding  all  forms  of  deposits,  excepting  veins  of  quartz, 
or  other  rock  in  place,  shall  be  subject  to  entry  and 
patent,  under  like  circumstances  and  conditions,  and 
upon  similar  proceedings,  as  are  provided  for  vein  or 
lode  claims;  but  where  the  lands  have  been  previously 
surveyed  by  the  United  States,  the  entry  in  its  exterior 
limits  shall  conform  to  the  legal  subdivisions  of  the 
public  lands. 

R.  S.,  Sec.  2330.  Legal  subdivisions  of  forty  acres  may 
be  subdivided  into  ten-acre  tracts;  and  two  or  more 
persons,  or  associations  of  persons,  having  contiguous 
[placer]  claims  of  any  size,  although  such  claims  may  be 
less  than  ten  acres  each,  may  make  joint  entry  thereof; 
but  no  location  of  a  placer  claim  made  after  July  9,  1870, 
shall  exceed  160  acres  for  any  one  person  or  association 
of  persons,  which  location  shall  conform  to  the  United 
States  surveys.  *  *  * 

R.  S.,  Sec.  2331.  Where  placer  claims  are  upon  sur 
veyed  lands,  and  conform  to  legal  subdivisions,  no  further 
survey  or  plat  shall  be  required,  and  all  placer-mining 
claims  located  after  May  10,  1872,  shall  conform  as  near 
as  practicable  with  the  United  States  system  of  public- 
land  surveys,  and  the  rectangular  subdivisions  of  such 
surveys,  and  no  such  location  shall  include  more  than 
twenty  acres  for  each  individual  claimant;  but  where 
placer  claims  cannot  be  conformed  to  legal  subdivisions, 
survey  and  plat  shall  be  made  as  on  unsurveyed 
lands.  *  *  * 

As  the  lode  location  is  the  prevailing  and  most  important 
type  of  mineral  location,  that  subject  has  been  treated  at  length. 
The  laws,  regulations,  principles,  and  customs  of  placer  location 
are  substantially  those  of  the  lode  location,  except  where  the 
fundamental  differences  between  the  two  types  of  deposits  neces 
sitate  changes.  Consequently,  :n  this  discussion  of  placer  loca- 
86 


PLACER  LOCATION  87 

tions,  only  these  differences  and  the  points  inherently  con 
nected  with  placers,  need  be  dwelt  upon.  The  three  Statutes 
given  above  are  the  Federal  laws  governing  placer  locations  of 
the  usual  type.  Three  other  Statutes  covering  special  deposits 
of  mineral  will  be  given  later  in  their  place.  Placers  require  a 
discovery,  staking,  and  the  posting  and  recording  of  location 
notice.  The  location  should  preferably  state  for  what  mineral 
or  minerals  the  location  is  made,  though  this  is  not  required  by 
law.  Annual  labor  is  required  as  with  lodes,  likewise  the  ex 
penditure  of  $500  before  patenting.  The  price  of  the  land  when 
obtaining  patent  is  $2.50  per  acre,  as  against  $5  in  the  case  of 
lodes.  State  laws  should  be  consulted  regarding  their  particular 
requirements,  some  of  which  call  for  discovery  or  location  work. 

The  first  question  is,  what  is  a  placer  and  what  may  be  located 
under  a  placer  location?  A  'placer'  originally  meant  a  deposit 
of  gravel,  of  pebbles,  and  boulders  and  soil,  which  had  come  to 
contain  gold  through  the  disintegration  and  washing  down  into 
the  ravines  of  the  veins  or  lodes  which  originally  held  the  gold. 
This  gold  in  the  placer  was  free  from  its  rock  matrix  and  could 
be  obtained  as  gold  dust  or  nuggets  by  washing  away  the  lighter 
gravel.  The  term  placer  as  now  used  in  connection  with  the 
mining  law,  covers  deposits  of  a  large  number  of  minerals  be 
sides  placer  gold.  These  deposits  subject  to  placer  location  are 
related  to  the  occurrence  of  placer  gold  by  being  formed  by  the 
same  agency,  running  waters  upon  the  earth's  surface,  or  by 
standing  waters  and  a  few  other  agencies  producing  deposits 
having  physical  structures  similar  to  those  formed  by  the  sur 
face  waters. 

Whether  certain  deposits  should  be  treated  as  placers  or  as 
lodes  has  given  much  trouble  in  the  past,  and  is  not  yet  fully 
settled.  At  one  time  it  was  thought  that  metallic  minerals 
should  be  located  as  lodes  and  nonmetallic  minerals  as  placers. 
The  metallic  or  nonmetallic  character  of  the  mineral  has  prac 
tically  no  bearing  on  the  subject,  except  the  fact  that  minerals 
of  the  first  class  usually  occur  as  lodes  and  the  second  as  placers. 
What  may  be  located  as  placers  is  dependent  upon  the  final  in 
terpretation  by  the  courts  of  what  is  a  placer  as  defined  by  the 
Statutes.  This  definition  by  the  Statutes  includes:  (1)  "Claims 


88  MINING  LAW 

usually  called  'placers',  including  all  forms  of  deposit,  excepting 
veins  of  quartz,  or  other  rock  in  place"  (R.  8.,  Sec.  2329);  (2) 
"lands  that  are  chiefly  valuable  for  building  stone"  (Act  of  Con 
gress)',  (3)  "lands  containing  petroleum  or  other  mineral  oils, 
and  chiefly  valuable  therefor"  (Act  of  Congress);  (4)  "lands 
*  *  *  containing  salt  springs,  or  deposits  of  salt  in  any  form,  and 
chiefly  valuable  therefor"  (Act  of  Congress). 

The  first  is  the  general  definition  of  a  placer;  the  other  three 
are  contained  in  special  Acts  made  to  enable  the  deposits  to  be 
taken  up  under  placer  laws.  The  first  and  general  definition 
must  be  considered  in  connection  with  the  statutory  definition 
of  what  is  a  lode  or  subject  to  lode  location,  which  reads  "veins 
or  lodes  of  quartz  or  other  rock  in  place  bearing  gold,  silver, 
cinnabar,  lead,  tin,  copper,  or  other  valuable  deposits."  (R.  8.. 
Sec.  2320.)  As  placer  includes  all  "excepting  veins  of  quartz, 
or  other  rock  in  place",  it  must  be  inferred  that  lode  locations 
may  be  made  upon  deposits  described  in  two  ways:  (1)  "veins 
or  lodes  of  quartz";  (2)  "rock  in  place  bearing  gold,  silver,  cin 
nabar,  lead,  tin,  copper,  or  other  valuable  deposits". 

The  following  substances  are  held  locatable  under  the  placer 
laws  when  found  in  placer  form;  when  occurring  as  veins 
or  lodes,  even  if  primarily  formed  as  placers,  it  appears  that 
they  should  be  located  as  lodes.  The  last  three  are  the  subjects 
of  special  placer  Acts. 

Alum  Kaolin  or  fire  clay 

Amber  Limestone 

Asphaltum  Marble 

Borax  Mica 

Building  gravel  (uncertain)           Phosphate  (uncertain) 

Building  stone  Salt  beds  and  springs 

Gas  Slate 

Gold-bearing  gravel  Soda 

Guano  Sulphur 

Gypsum  Tailing  and  slag 

Iron  beds  Petroleum 

The  geologist  would  place  under  lodes,  those  deposits  filling 
fissures  or  cracks  in  the  earth's  crust;  deposits  having  no  rela 
tion  to  stratification  or  bedding  planes,  except  as  these  may  form 
lines  of  weakness  and  openings  for  the  passage  of  the  mineral- 


PLACER  LOCATION  89 

izing  solutions  and  the  deposition  of  mineral  deposits  formed 
by  the  circulation  or  movement  of  water  beneath  the  surface 
of  the  ground,  producing  enrichment,  vein  formation,  or  general 
mineralization;  these  are  subject  to  lode  location,  for  they  are 
lodes.  Under  placers  he  would  place  those  deposits  formed  by 
the  natural  surface  waters  running  over,  standing,  or  evaporat 
ing  on  the  earth's  surface,  depositing  the  material  which  they 
were  carrying  mechanically  or  by  saturation,  as  a  blanket  over 
the  subsisting  surface  of  the  ground;  and  any  deposit  covering 
the  earth  as  a  blanket,  such  as  guano,  the  excrement  of  birds, 
and  phosphate,  the  secretion  and  remains  of  animals;  these 
when  in  loose  form  or  even  cemented,  but  not  solidified  to  the 
point  of  being  rock,  would  be  located  as  placers,  even  though 
buried  far  below  the  surface,  as  in  the  case  of  the  deep-lying 
gold-bearing  gravel  beds  of  California.  When  the  loose  placer 
deposits  harden  and  become  solid  rock,  as  sandstone,  limestone, 
phosphate  rock,  or  marble,  he  would  still  call  them  placer  de 
posits,  even  though  lying  far  beneath  the  surface  and  a  part 
of  the  stratified  rock  formations.  However,  the  law  does  not 
appear  to  take  this  view  in  the  latter  case;  whatever  could  be 
classified  as  building  stone  is  subject  to  placer  location  unques 
tionably,  not  because  of  any  original  placer  formation — granite 
would  not  have  originated  as  a  placer — but  because  of  the  special 
Act  authorizing  placer  locations  on  such  deposits.  Such  of 
this  class  of  deposits  as  cannot  come  under  the  head  of  building 
stone,  become  "rock  in  place"  and  apparently  subject  to  lode 
location,  though  nothing  conclusive  can  be  said;  when  these 
last  deposits  contain  some  mineral  for  which  they  are  valuable, 
as  sandstone  containing  gold,  or  limestone  containing  phosphate 
(phosphate  rock),  it  appears  that  they  become  "rock  in  place 
bearing  *  *  *  valuable  deposits"  and  subject  to  lode  location. 
This  is  the  view  taken  by  the  Land  Department.  It  may  be 
noted  that  this  refers  to  "rock  in  place  bearing  *  *  *  valuable 
deposits".  What  view  would  be  taken  of  "rock  in  place"  that 
did  not  bear  any  valuable  deposit  or  contain  anything  other 
than  the  rock  of  which  it  was  composed  and  that  could  not 
be  construed  as  building  stone,  is  unknown;  apparently  such 
deposits  are  seldom  located.  Where  there  is  doubt  as  to  whether 


90  MINING  LAW 

a  placer  or  lode  location  should  be  made,  the  ground  should  be 
located  under  both  forms  and  patent  application  first  made  under 
that  form  which  appears  best  adapted. 

Another  factor  is  the  type  of  deposit.  Asphaltum  filling  a 
fissure  was  required  to  be  located  as  a  lode;  when  occurring  as 
i  surface  deposit,  it  was  to  be  located  as  a  placer.  Marble 
.vas  patented  under  the  placer  laws  as  building  stone;  onyx 
)ccurring  as  a  lode  filling  a  fissure  in  limestone  was  patented 
is  a  lode.  Apparently  deposits  having  the  physical  character 
istics  of  lodes,  even  though  not  formed  as  lodes  usually  are, 
should  be  located  as  lodes. 

As  an  exception  to  the  theory  of  what  is  locatable  as  placer 
is  an  early  ruling  of  the  Land  Department  that  common  brick 
clay  is  not  to  be  patented  as  placer,  but  under  agricultural 
3ntry,  it  being  held  that  common  brick  clay  is  not  a  mineral 
within  the  meaning  of  the  mining  laws;  and  a  recent  ruling 
to  the  same  effect  regarding  sand  and  gravel,  the  Land  Depart 
ment  saying,  "Deposits  of  sand  and  gravel,  suitable  for  mixing 
with  cement  for  concrete  construction,  but  having  no  peculiar 
property  or  characteristic  giving  them  special  value,  and  deriv 
ing  their  chief  value  from  proximity  to  a  town,  do  not  render 
the  land  in  which  they  are  found  mineral  in  character  within 
the  meaning  of  the  mining  laws,  or  bar  entry  under  the  home 
stead  laws,  notwithstanding  the  land  may  be  more  valuable  on 
account  of  such  deposits  than  for  agricultural  purposes".  These 
two  interpretations  seem  at  variance  with  the  mining  laws  to 
those  unfamiliar  with  public-land  conditions.  At  present  there 
is  a  great  hunger  for  land.  Public  agricultural-land  can  only 
be  obtained  under  the  Homestead  or  similar  Acts  from  the  Gov 
ernment  or  by  the  more  costly  method  of  purchase  through  the 
owners  of  large  floating  grants.  To  take  up  p.ublic  agricultural- 
land  under  the  placer  laws  as  being  valuable  for  clay,  sand,  or 
gravel,  would  be  a  convenient  and  easy  method,  and  would  lead 
to  large  areas  being  acquired  in  this  way,  for  almost  any  piece 
of  agricultural  land  could  be  located  for  these  substances. 

The  maximum  size  claim  that  one  person  may  locate  is  20 
acres.  'Association  claims'  may  be  taken  up  by  a  group  or  asso 
ciation  of  two  or  more  persons,  in  which  the  claim  may  be  en- 


PLACER  LOCATION  91 

larged  20  acres  for  each  individual  in  the  association,  up  to  the 
limit  of  160  acres.  Two  people  may  locate  40  acres  as  one  claim, 
five  may  locate  100  acres,  or  eight  or  more  may  locate  160  acres. 
No  claim  larger  than  160  acres  may  be  located.  Most  placers  are 
located  as  association  claims,  and  the  right  is  much  abused.  A 
man  may  secure  the  consent  or  take  the  power-of-attorney  of 
seven  of  his  acquaintances,  and  there  is  no  way  to  prevent  him 
from  locating  an  unlimited  number  of  160-acre  placer  claims,  for 
as  with  lode  locations,  there  is  no  limit  under  the  Federal  Stat 
utes  to  the  number  of  placer  claims  one  may  locate.  Association 
claims  located  for  a  single  individual  are  invalid.  A  corporation 
is  considered  an  individual  and  may  locate  claims  of  only  20 
acres  each. 

An  annual  labor  expenditure  of  $100  will  hold  an  association 
claim  of  any  size  just  the  same  as  a  20-acre  claim.  Likewise 
with  reference  to  the  $500  expenditure  for  patent  purposes. 
These  claims  are  staked  as  single  claims,  that  is,  a  160-acre  claim 
is  staked  160  acres  large  and  not  into  20-acre  blocks. 

A  single  discovery  is  sufficient  to  validate  a  160-acre  or  lesser 
claim,  but  the  Land  Department  has  said,  "while  a  single  dis 
covery  is  sufficient  to  authorize  the  location  of  a  placer  claim,  and 
may  in  the  absence  of  any  claim  or  evidence  to  the  contrary,  be 
treated  as  sufficiently  establishing  the  mineral  character  of  the 
entire  claim  to  justify  the  patenting  thereof,  such  single  dis 
covery  does  not  conclusively  establish  the  mineral  character  of 
all  the  land  included  in  the  claim,  so  as  to  preclude  further  in 
quiry  in  respect  thereto."  This  is  taken  to  mean  that  on  a  pro 
test  being  made  that  part  of  a  claim  was  without  mineral 
and  more  valuable  for  some  other  purposes,  the  claim  might  be 
reduced  to  the  proved  or  known  mineral  portions  only.  The 
Land  Department  also  holds  that  where  an  association  placer 
claim  is  transferred  to  a  single  person  before  a  discovery  has 
been  made  to  validate  it,  a  discovery  after  the  transfer  will  only 
perfect  the  claim  to  the  extent  of  20  acres — the  maximum  a 
single  person  can  locate,  except  oil  claims  where  development 
work  had  been  started  before  land  was  withdrawn  from  oil  loca 
tion — as  provided  by  a  special  Act  of  Congress. 

There  are  two  forms  of  placer  locations,  those  conforming  to 


92  MINING  LAW 

legal  subdivisions  and  the  system  of  public-land  surveys,  and 
'gulch  placers'  which  are  shaped  to  suit  the  desires  of  the  locator. 
Placers  should  conform  to  legal  subdivisions  both  upon  surveyed 
and  unsurveyed  land,  unless  it  can  be  convincingly  shown  that 
such  procedure  is  not  merely  impracticable,  but  highly  so,  in 
which  case  a  gulch  may  be  located.  Gulch  placers  must  be  con 
sistent  in  shape  and  without  the  overlapping  of  other  claims  so 
common  in  lode  location. 

The  smallest  legal  subdivision  is  40  acres  in  all  cases,  with  the 
single  exception  of  placers,  where  the  40  acre-tracts  may  be  sub 
divided  into  four  square  10-acre  tracts,  each  660  ft.  square.  For 
a  single  locator  to  locate  the  maximum  size  of  20  acres,  it  is  only 
necessary  to  appropriate  two  of  these  tracts,  if  upon  surveyed 
land.  Larger  claims  are  made  by  the  simple  process  of  adding 
contiguous  10-acre  subdivisions  or  blocks.  The  illustration 
(Fig.  17)  shows  the  method  of  locating  gold-bearing  gravel  along 
a  creek  by  legal  subdivisions  upon  surveyed  land.  The  location 
B  of  a  single  locator  could  not  have  been  included  with  A,  since 
it  only  corners.  Except  in  rare  cases,  time,  money,  and  trouble 
may  be  saved  by  taking  up  placer  claims  upon  surveyed  land  by 
the  legal  subdivisions  instead  of  making  a  gulch-placer  location. 

Regarding  placers  upon  unsurveyed  land,  the  Land  Department 
has  said  that  such  locations  shall  conform  as  nearly  as  practicable 
to  the  "system  of  public-land  surveys  and  the  rectangular  sub 
divisions  of  such  surveys,"  by  making  the  location  as  nearly  as 
reasonably  practicable,  rectangular  in  form,  compact,  and  with 
east-west  and  north-south  bounding  lines.  It  considers  claims 
satisfactory  when  those  of  one  or  two  persons  can  be  entirely 
included  within  a  square  40-acre  tract;  when  a  claim  located  by 
three  or  four  persons  can  be  entirely  included  in  two,  square,  40- 
acre  tracts  placed  end  to  end;  when  a  claim  located  by  five  or  six 
persons  can  be  entirely  included  in  three,  square,  40-acre  tracts; 
or  a  claim  located  by  seven  or  eight  persons  can  be  entirely  in 
cluded  in  four,  square,  40-acre  tracts;  but  it  is  not  intended  that 
the  40-acre  tracts  shall  necessarily  have  east-west  and  north- 
south  boundaries. 

It  has  been  customary  to  locate  placer  claims  of  20  acres  by 
taking  up  two  square  10-acre  blocks,  making  a  rectangle  1320  by 


PLACER  LOCATION 


93 


660  ft.,  without  reference  to  the  boundaries  being  east-west  and 
north-south.  Larger  claims  have  been  made  by  adding  or  uniting 
20-aere  tracts.  The  Land  Department  favors  this  method  when 
the  larger  claims  are  fairly  compact  in  shape,  but  says  that  each 


l\-\    P/aeer  Locar/o/7    /j        y/4     P/aeer  Locat/o/J 
-.. Gold  Bear/ng  tfrea 

Fig.   17 


claim  must  be  judged  and  decided  upon  its  own  facts,  meaning 
that  while  it  may  not  require  a  strict  compliance  with  the  plan 
in  the  preceding  paragraph,  it  will  not  permit  long,  narrow,  and 
fantastically  shaped  claims  to  go  to  patent.  In  one  instance 
patent  was  asked  for  a  single  claim  over  16  miles  long,  with  an 
average  width  of  51  ft.,  and  containing  102  acres.  Where  the 
ground  is  surrounded  by  other  claims,  or  under  other  exceptional 


94  MINING  LAW 

conditions,  a  considerable  departure  from  the  theory  may  be 
allowed.  A  claim  taken  up  by  legal  subdivision  may  include 
segregated  pieces  of  land  so  made  by  excluding  areas  belonging 
to  others;  claims  not  taken  up  by  legal  subdivisions  will  probably 
be  allowed  to  include  segregated  pieces  of  land  where  it  is  shown 
to  be  the  logical  method  of  locating  the  ground.  The  reason  that 
so  little  sanction  is  given  to  including  segregated  pieces  of  ground 
in  a  placer  claim  or  placing  its  corners  on  the  ground  of  others, 
whereas  it  is  sanctioned  with  lode  claims,  is  on  account  of  the 
fundamental  difference  between  the  two  classes  of  claims  due 
to  the  great  importance  of  the  law  of  extralateral  or  apex  right, 
and  the  necessity,  in  conforming  to  that  law,  of  extending  lode- 
claim  lines  over  the  ground  of  others  and  placing  the  corners 
upon  the  claims  of  others. 

Placer  claims  upon  unsurveyed  land  should  be  staked  at  each 
corner.  As  to  whether  a  placer  location  by  legal  subdivisions  upon 
surveyed  land  needs  to  be  staked,  there  have  been  decisions 
for  and  against  in  the  courts.  The  Land  Department  will  accept 
for  patent  such  a  location  without  staking,  but  the  better  view  is 
that  staking  should  be  done,  and  the  miner  is  advised  to  take 
no  chances.  A  location  notice  stating  for  what  the  location  has 
been  made  should  be  posted  upon  the  claim  and  recorded. 

It  is  often  asked  if  the  claims  of  two  individual  locators  may 
be  united  as  one  claim,  thus  allowing  the  annual  labor  that 
would  be  required  upon  a  single  claim,  to  hold  the  enlarged 
claim.  So  far  as  can  be  learned  the  Land  Department  and  the 
courts  have  not  passed  upon  this  point.  However,  it  does  not 
appear  why  an  amended  location  or  a  relocation  could  not  be 
made  for  this  purpose.  In  fact  the  Statute  would  appear  to  sanc 
tion  this,  for  it  says  "and  two  or  more  persons,  or  associations 
of  persons,  having  contiguous  [placer]  claims  of  any  size,  al 
though  such  claims  may  be  less  than  10-acres  each,  may  make 
joint  entry  thereof."  But  such  a  relocation  or  amended  location 
should  be  consistent  with  the  requirements  of  the  law,  that  is, 
the  joint  owners  should  own  the  ground  jointly  and  not  the 
separate  parts  as  formed  by  their  former  claims,  nor  should 
they  unite  their  claims  for  the  purpose  of  making  the  work  done 


PLACER  LOCATION  95 

under  the  former  locations  equal  $500  for  patenting  the  joint 
claim,  with  the  idea  of  dividing  the  claim  immediately  after 
patent  is  obtained. 

A  placer  location,  no  matter  for  what  it  has  been  made,  takes 
all  minerals  subject  to  location  as  placers,  and  after  application 
for  patent  takes  all  lodes  except  known  lodes,  which  subject 
will  be  treated  in  the  next  chapter. 

Salt  Deposits  and  Salt  Springs 

ACT  OF  CONGRESS:  That  all  unoccupied  public 
lands  of  the  United  States  containing  salt  springs,  or 
deposits  of  salt  in  any  form,  and  chiefly  valuable  there 
for,  are  hereby  declared  to  be  subject  to  location  and 
purchase  under  the  provisions  of  the  law  relating  to 
placer-mining  claims;  provided,  that  the  same  person 
shall  not  locate  or  enter  more  than  one  claim  hereunder. 

This  Act  is  operative  in  all  the  public  lands  of  the  United 
States,  and  not  in  the  mining-law  States  alone.  It  is  only 
by  the  production  of  salt  through  the  usual  processes  that  a 
saline  spring  or  deposit  becomes  subject  to  placer  location,  and 
the  use  of  a  salt  spring  as  a  bathing  resort  instead  does  not 
tend  to  validate  a  placer  location. 

Building  Stone 

ACT  OF  CONGRESS:  That  any  person  authorized 
to  enter  lands  under  the  mining  laws  of  the  United 
States,  may  enter  lands  that  are  chiefly  valuable  for 
building  stone  under  the  provisions  of  the  law  in  rela 
tion  to  placer-mineral  claims;  provided,  that  lands  re 
served  for  the  benefit  of  the  public  schools  or  donated 
to  any  State  shall  not  be  subject  to  entry  under  this 
Act. 

It  will  be  observed  that  the  right  to  locate  building-stone 
placers  upon  school  and  State  lands  is  denied,  whereas  all 
other  placers  may  be  located  and  patented  upon  such  lands 
under  the  conditions  stated  in  the  chapter  on  'Where  locations 
may  be  made.'  Building  stone,  upon  surveyed  land,  may  also 
be  secured  under  the  Timber  and  Stone  Act  as  well  as  by  placer 
location,  but  upon  unsurveyed  land  by  placer  location  only. 


96  MINING  LAW 

Petroleum  and  Oil 

ACT  OF  CONGRESS:  That  any  person  authorized 
to  enter  lands  under  the  mining  laws  of  the  United 
States,  may  enter  and  obtain  patent  to  lands  containing 
petroleum  or  other  mineral  oils,  and  chiefly  valuable 
therefor,  under  the  provisions  of  the  laws  relating  to 
placer-mineral  claims. 

ACT  OF  CONGRESS:  That  where  oil  lands  are  lo 
cated  *  *  *  as  placer  mining  claims,  the  annual  as 
sessment  labor  upon  such  claims  may  be  done  upon  any 
one  of  a  group  of  claims  lying  contiguous  and  owned 
by  the  same  person  or  corporation,  not  exceeding  five 
claims  in  all;  provided,  that  said  labor  will  tend  to  the 
development  or  to  determine  the  oil-bearing  character  of 
such  contiguous  claims. 

The  placer-mining  laws  are  not  well  adapted  for  locating  oil 
lands,  but  in  the  absence  of  suitable  laws,  oil  lands  were  located 
as  placers  until  the  Land  Department  ruled  that  oil  was  not 
a  mineral  and  that  oil  lands  should  not  be  taken  up  as  placers. 
This  resulted  in  Congress  passing  the  above  Statute  legalizing 
the  location  of  oil  lands  as  placers.  The  whole  forms  an  excel 
lent  example  of  the  apathy  in  formulating  and  enacting  suit 
able  mining  laws. 

The  discovery  of  oil  necessary  to  validate  an  oil  location 
must  be  a  discovery  of  actual  oil  in  material  quantities  sufficient 
to  justify  the  belief  that  oil  in  commercial  quantities  may 
exist;  indications,  oil  formations,  and  oil  seepages  will  not  suffice. 
Until  the  locator  discovers  oil,  which  usually  means  the  expend 
iture  of  considerable  time  and  money,  the  courts  will  protect 
him  "in  his  possession  of  the  ground  to  the  fullest  extent  that 
they  are  able,  while  he  is  attempting  in  good  faith  to  discover 
oil;  but  just  as  with  a  lode  location,  there  is  no  valid  location 
until  a  discovery  is  made,  and  others  have  more  or  lees  right 
to  attempt  to  make  a  discovery  as  well  as  the  prior  claimant. 
The  location  of  land  more  valuable  for  oil  than  for  other  pur 
poses  under  the  guise  of  locating  for  other  mineral  is  invalid 
and  cannot  be  sustained  under  protest  or  perfected  to  patent. 

The  new  land-withdrawal  law  does  not  allow  locations  for 
oil  to  be  made  upon  withdrawn  areas,  but  says  concerning  al- 


PLACER  LOCATION  97 

ready  existing  oil  locations,  "that  the  rights  of  any  person  who, 
at  the  date  of  any  order  of  withdrawal  heretofore  or  hereafter 
made,  is  a  bona  fide  occupant  or  claimant  of  oil  or  gas-bearing 
lands,  and  who,  at  such  date  is  in  diligent  prosecution  of  work 
leading  to  discovery  of  oil  or  gas,  shall  not  be  affected  or  im 
paired  by  such  order,  so  long  as  such  occupant  or  claimant  shall 
continue  in  diligent  prosecution  of  said  work.  And  provided 
further,  that  this  Act  shall  not  be  construed  as  a  recognition, 
abridgment,  or  enlargement  of  any  asserted  rights  or  claims 
initiated  upon  any  oil  or  gas-bearing  lands  after  any  withdrawal 
of  such  lands  made  prior  to  the  passage  of  this  Act." 

Since  the  Land  Department  holds  that  where  an  association 
placer  claim  is  conveyed  to  a  single  individual  before  a  dis 
covery  is  made,  the  subsequent  discovery  will  only  validate  20 
acres  of  the  claim,  the  Act  of  March  2,  1911,  was  passed  to 
allow  association  oil  claims  upon  which  development  work  had 
been  started  before  the  land  was  withdrawn  from  location,  to 
become  valid  to  their  full  extent,  even  if  transferred  to  a  single 
individual  before  discovery.  The  Act  reads: 

ACT  OF  CONGRESS:  That  in  no  case  shall  patent 
be  denied  to  or  for  any  lands  heretofore  located  or 
claimed  under  the  mining  laws  of  the  United  States  con 
taining  petroleum,  mineral  oil,  or  gas  solely  because  of 
any  transfer  or  assignment  thereof  or  of  any  interest 
or  interests  therein  by  the  original  locator  or  locators, 
or  any  of  them,  to  any  qualified  persons  or  person,  or 
corporation,  prior  to  discovery  of  oil  or  gas  therein,  but 
if  such  claim  is  in  all  other  respects  valid  and  regular, 
patent  therefor  not  exceeding  one  hundred  and  sixty 
acres  in  any  one  claim  shall  issue  to  the  holder  or  hold 
ers  thereof,  as  in  other  cases;  provided,  however,  that 
such  lands  were  not  at  the  time  of  inception  of  develop 
ment  on  or  under  such  claim  withdrawn  from  mineral 
entry. 


CHAPTER  XIV 
Lodes  Within  Placers 

R.  S.,  Sec.  2333:  Where  the  same  person,  association, 
or  corporation  is  in  possession  of  a  placer  claim,  and 
also  a  vein  or  lode  included  within  the  boundaries  there 
of,  application  shall  be  made  for  a  patent  for  the  placer 
claim,  with  the  statement  that  it  includes  such  vein 
or  lode,  and  in  such  case  a  patent  shall  issue  for  the 
placer  claim,  subject  to  the  provisions  of  this  chapter, 
including  such  vein  or  lode,  upon  the  payment  of  $5 
per  acre  for  such  vein  or  lode  claim  and  twenty-five  feet 
of  surface  on  each  side  thereof.  The  remainder  of  the 
placer  claim  or  any  placer  claim  not  embracing  any 
vein  or  lode  claim  shall  be  paid  for  at  the  rate  of  $2.50 
per  acre,  together  with  all  costs  of  proceedings;  and 
where  a  vein  or  lode,  such  as  is  described  in  section 
2320,  is  known  to  exist  within  the  boundaries  of  a 
placer  claim,  an  application  for  a  patent  for  such  placer 
claim  which  does  not  include  an  application  for  the 
vein  or  lode  claim,  shall  be  construed  as  a  conclusive 
declaration  that  the  claimant  of  the  placer  claim  has 
no  right  of  possession  of  the  vein  or  lode  claim;  but 
where  the  existence  of  a  vein  or  lode  in  a  placer  claim 
is  not  known,  a  patent  for  the  placer  claim  shall  convey 
all  valuable  mineral  and  other  deposits  within  the 
boundaries  thereof. 

The  intent  of  the  above  Statute  was  to  place  known  lodes  in 
placer  claims  open  to  exploration  and  purchase  by  those  inter 
ested  in  the  working  of  lodes,  instead  of  allowing  them  to 
remain  idle  and  undeveloped  through  having  come  unsought 
into  the  possession  of  those  only  interested  in  placers.  Also, 
that  the  greater  ease  and  less  cost  by  which  placer  ground  may 
be  obtained  might  not  induce  placer  location  and  patent  over 
ground  only  nominally  placer  for  the  purpose  of  obtaining  any 
lodes  which  it  was  known  to  contain.  The  law  has  not  been 
fully  worked  out,  since  practically  all  of  the  court  decisions 

98 


LODES  WITHIN  PLACERS  99 

cover  cases  of  lode  location  after  issuance  of  the  placer  patent. 
The  Statute  is  not  operative  on  claims  patented  prior  to  the 
date  of  its  passage,  May  10,  1872;  such  earlier  patented  claims 
include  the  right  to  the  known  lodes. 

A  lode,  to  come  within  the  scope  of  this  law,  must  be  known 
at  date  of  application  fo*r  patent  upon  the  placer  claim.  Lodes 
discovered  afterward  are  the  property  of  the  placer  patentee, 
even  in  the  case  of  a  lode  that,  without  showing  or  being  ex 
posed  on  the  placer  claim,  was  being  worked  on  an  adjoining 
claim  and  later  was  followed  on  its  strike  into  the  placer  claim 
after  the  application  for  placer  patent.  A  lode  that  is  consid 
ered  valueless  or  that  has  been  abandoned  as  worthless,  is 
not  such  a  known  lode.  It  must  have  a  value  that  will  justify 
exploration.  It  must  approach  the  conditions  whereby  a  lode 
location  defeats  an  agricultural  entry.  A  valid  lode  location 
made  prior  to  a  conflicting  placer  location  takes  its  full  area. 
A  lode  location  made  under  the  Statute  in  question  after  the 
placer  location,  is  entitled  to  fifty  feet  in  width  along  the  vein 
— twenty-five  feet  on  each  side.  When  patent  is  asked  by 
the  placer  claimant,  the  proper  procedure  for  the  lode  claimant 
is  to  secure  exclusion  of  his  lode  strip  or  adverse  the  patent 
to  that  extent.  If  successful,  he  will  be  enabled  to  secure  his 
lode  patent  in  the  usual  way.  If  this  precaution  is  not  taken, 
or  in  the  case  of  a  lode  location  made  after  placer  patent,  when 
the  lode  claimant  asks  for  his  patent,  hearing  will  be  held  to 
determine  by  the  facts  presented,  if  the  lode  is  a  known  lode 
as  contemplated  by  the  Statute,  and  the  Land  Department  has 
the  right  in  consequence  to  grant  such  a  patent. 

A  mooted  question  is,  has  the  placer  claimant,  before  making 
application  for  placer  patent,  the  possessory  right  to  and  the 
refusal  of  all  known  lodes  without  having  located  them  as  such? 
One  conclusion  of  the  Statute  is  that  he  has.  A  court  decision 
says  that  a  stranger  cannot  enter  within  the  lines  of  a  placer 
location  to  prospect  for  lodes,  and  if  he  does  so  enter  and  dis 
covers  and  locates  a  lode,  it  is  a  claim  initiated  by  trespass 
and  is  void.  But  such  a  discovered  lode  now  becomes  a  known 
lode,  just  as  any  lode  uncovered  in  any  way  or  by  anyone  up 
to  application  for  patent.  The  placer  claimant  or  one  to  whom 


100  MINING  LAW 

he  has  given  his  consent  may  locate  a  lode.  The  Land  Depart 
ment  has  taken  the  stand  that  a  placer  locator  has  not  the 
possessory  right  to  the  lodes  within  his  location,  so  as  to  pre 
vent  the  discovery  and  location  of  such  lodes  by  others.  This 
is  the  proper  view,  for  under  that  of  the  court  decision  referred 
to,  all  the  veins  as  well  as  the  placer  mineral  in  a  160-acre 
placer  location  could  be  held  by  doing  $100  worth  of  work  an 
nually.  Undoubtedly,  if  a  case  came  into  court,  the  good  faith 
of  the  placer  claimant  would  be  the  greatest  factor  in  deter 
mining  how  far  a  stranger  might  go  in  clandestinely  prospecting 
for  and  locating  the  lodes  within  a  placer  location.  The  placer 
locator  may  perhaps  strengthen  his  right  of  possession  to  the 
known  lodes  by  inserting  in  his  placer  location  notice,  the  pro 
viso,  'including  the  right  to  locate  and  patent  all  known  lodes.' 
But  the  proper  plan  is  to  at  once  locate  all  desired  lodes.  Lodes 
within  placers  should  be  located  in  the  usual  way,  with  the 
exception  that  fifty  feet  is  the  maximum  width. 


CHAPTER  XV 

Tunnel  Site  Location 

R.  S.,  Sec.  2323:  Where  a  tunnel  is  run  for  the  de 
velopment  of  a  vein  or  lode,  or  for  the  discovery  of 
mines,  the  owners  of  such  tunnel  shall  have  the  right 
of  possession  of  all  veins  or  lodes  within  three  thousand 
feet  from  the  face  of  such  tunnel  on  the  line  thereof, 
not  previously  known  to  exist,  discovered  in  such  tunnel, 
to  the  same  extent  as  if  discovered  from  the  surface; 
and  locations  on  the  line  of  such  tunnel  of  veins  or 
lodes  not  appearing  on  the  surface,  made'by  other  par 
ties  after  the  commencement  of  the  tunnel,  and  while 
the  same  is  being  prosecuted  with  reasonable  diligence, 
shall  be  invalid,  but  failure  to  prosecute  the  work  on 
the  tunnel  for  six  months,  shall  be  considered  as  an 
abandonment  of  the  right  to  all  undiscovered  veins 
on  the  line  of  such  tunnel. 

ACT  OF  CONGRESS:  That  section  2324  of  the  Re 
vised  Statutes  [requiring  annual  labor]  be,  and  the 
same  is  hereby  amended,  so  that  where  a  person  or  com 
pany  has  or  may  run  a  tunnel  for  the  purpose  of  de 
veloping  a  lode  or  lodes,  owned  by  said  person  or  com 
pany,  the  money  so  expended  in  said  tunnel  shall  be 
taken  and  considered  as  expended  on  said  lode  or  lodes, 
whether  located  prior  to  or  since  the  passage  of  said 
Act;  and  such  person  or  company  shall  not  be  required 
to  perform  work  on  the  surface  of  said  lode  or  lodes  in 
order  to  hold  the  same  as  required  by  said  Act. 

"The  effect  of  section  2323,  Revised  Statutes,  is  to  give  the 
proprietors  of  a  mining  tunnel  run  in  good  faith,  the  possessory 
right  to  1500  ft.  of  any  blind  lodes  cut,  discovered,  or  intersected 
by  such  tunnel,  which  were  not  previously  known  to  exist  within 
3000  ft.  from  the  face  or  point  of  commencement  of  such  tunnel, 
and  to  prohibit  other  parties,  after  the  commencement  of  the 
tunnel,  from  prospecting  for  and  making  locations  of  lodes  on 
the  line  thereof  and  within  said  distance  of  3000  ft,  unless 

101 


102  MINING  LAW 

such  lodes  appear  upon  the  surface  or  were  previously  known 
to  exist.  The  term  'face'  as  used  in  said  section,  is  construed 
and  held  to  mean  the  first  working  face  formed  in  the  tunnel, 
and  to  signify  the  point  at  which  the  tunnel  actually  enters 
cover;  it  being  from  this  point  that  the  3000  ft.  are  to  be 
counted,  upon  which  prospecting  is  prohibited  as  aforesaid. 

"To  avail  themselves  of  the  benefits  of  this  provision  of  law, 
the  proprietors  of  a  mining  tunnel  will  be  required,  at  the  time 
they  enter  cover  as  aforesaid,  to  give  proper  notice  of  their 
tunnel  location  by  erecting  a  substantial  post,  board,  or  monu 
ment  at  the  face  or  point  of  commencement  thereof,  upon  which 
should  be  posted  a  good  and  sufficient  notice,  giving  the  names 
of  the  parties  or  company  claiming  the  tunnel  right;  the  actual 
or  proposed  course  or  direction  of  the  tunnel,  the  height  and 
width  thereof,  and  the  course  and  distance  from  such  face  or 
point  of  commencement  to  some  permanent  well  known  objects 
in  the  vicinity,  by  which  to  fix  and  determine  the  locus  in 
manner  heretofore  set  forth  applicable  to  locations  of  veins  or 
lodes,  and  at  the  time  of  posting  such  notice  they  shall,  in 
order  that  miners  or  prospectors  may  be  enabled  to  determine 
whether  or  not  they  are  within  the  lines  of  the  tunnel,  estab 
lish  the  boundary  lines  thereof,  by  stakes  or  monuments  placed 
along  such  lines  at  proper  intervals,  to  the  terminus  of  the 
3000  ft.  from  the  face  or  point  of  commencement  of  the  tunnel, 
and  the  lines  so  marked  will  define  and  govern  as  to  specific 
boundaries  within  which  prospecting  for  lodes  not  previously 
known  to  exist  is  prohibited,  while  work  on  the  tunnel  is 
being  prosecuted  with  reasonable  diligence.  A  full  and  correct 
copy  of  such  notice  of  location  defining  the  tunnel  claim  must 
be  filed  for  record  with  the  mining  recorder  of  the  district,  to 
which  notice  must  be  attached  the  sworn  statement  or  declara 
tion  of  the  owners,  claimants,  or  projectors  of  such  tunnel, 
setting  forth  the  facts  in  the  case;  stating  the  amount  expended 
by  themselves  and  their  predecessors  in  interest  in  prosecuting 
work  thereon;  the  extent  of  the  work  performed,  and  that  it 
is  bona  fide  their  intention  to  prosecute  work  on  the  tunnel  so 
located  and  described  with  reasonable  diligence  for  the  develop 
ment  of  a  vein  or  lode,  or  for  the  discovery  of  mines,  or  both, 


TUNNEL  SITE  LOCATION  103 

as  the  case  may  be.  This  notice  of  location  must  be  duly  re 
corded,  and  with  the  said  sworn  statement  attached,  kept  on 
the  recorder's  files  for  future  reference."  (Land  Office  Regula 
tions,  16,  17,  18.) 

A  tunnel-site  location  is  not  strictly  a  mining  claim,  but  gives 
an  inchoate  right  which  may  be  developed  to  patent  blind  and 
unknown  lodes  cut  by  the  tunnel.  The  rights  and  requirements 
are  succinctly  stated  in  the  Statutes  and  regulations  above.  The 
locator,  on  commencing  work,  acquires  the  right  to  all  veins 
which  may  be  cut  by  the  tunnel  within  3000  ft.  of  its  portal; 
provided,  these  veins  do  not  exist  on  the  surface,  but  are  blind 
veins  whose  existence  has  theretofore  been  unknown.  The  right 
entitles  him  to  1500  ft.  of  the  strike  of  each  vein  cut,  all  on 
one  side  of  the  tunnel  or  divided  as  he  may  desire,  and  from 
the  apex  to  the  lowest  depth,  just  as  if  located  on  the  surface. 
He  acquires  no  specific  rights  by  this  location  over  any  prior 
locations,  no  right  to  any  blind  lodes  apexing  in  their  ground 
which  he  may  cut,  or  right-of-way  through  their  ground.  All 
locations  made  subsequent  to  the  commencement  of  work  in  the 
tunnel  are  made  on  the  peril  of  losing  any  blind  veins  apexing 
in  them,  which  the  tunnel  locator  may  be  entitled  to  through 
cutting  in  his  tunnel,  and  which  are  subject  to  his  right-of-way. 

Tunnel  rights  are  dependent  upon  the  work  being  prosecuted 
with  "reasonable  diligence."  What  is  reasonable  diligence  has 
not  been  passed  upon.  Failure  to  prosecute  work  on  the  tunnel 
for  six  months  loses  the  right  to  all  blind  veins  which  may  be 
cut  later,  but  not  to  the  tunnel,  which  may  be  continued.  As 
the  claimant  is  allowed  1500  ft.  in  any  direction  of  all  blind 
veins  cut  throughout  the  3000  ft.  of  his  tunnel,  he  practically 
commands  an  area  in  the  shape  of  a  race-track,  6000  ft.  long 
and  3000  ft.  wide,  as  shown  in  Fig.  18.  Some  have  considered 
that  the  claimant's  rights  should  be  confined  to  1500  ft.  on 
each  side  of  the  tunnel,  making  a  square  3000  by  3000  ft.,  but 
there  is  no  direct  reason  why  he  should  not  receive  his  1500 
ft.  of  lode,  even  if  found  at  one  end  of  the  tunnel  and  striking 
outside  of  the  square.  The  Land  Office  regulation,  that  the  bound 
ary  lines  of  the  tunnel  should  be  staked,  is  held  to  mean  that 
the  length  and  width  of  the  proposed  tunnel  should  be  exactly 


104  MINING  LAW 

shown  by  two  parallel  lines  of  stakes.  It  seems  inconsistent 
to  run  two  lines  of  stakes  to  simply  exhibit  the  width  or  bore 
of  the  tunnel;  the  regulations  probably  purposed,  not  the  bound 
aries  of  the  tunnel,  but  of  the  area  within  which  prospecting 
was  practically  prohibited. 


Line   of   Tunnel 


Fig.  18 

There  is  no  necessity  for  a  tunnel  locator  to  adverse  the 
application  for  patent  of  a  subsequent  lode  location,  to  preserve 
his  rights  to  any  blind  lodes  which  he  may  cut.  The  Statute 
protects  him  in  that  respect;  but  he  should  adverse  to  protect 
any  already  cut  lodes  upon  which  he  may  wish  to  secure  surface 
area. 

A  millsite  location  for  dumping  area  should  be  made  in  con-- 
nection  with  a  tunnel-site  location.  Often  a  small  area  of 
ground  is  included  in  the  tunnel-site  location  for  that  purpose. 
Unfortunately,  the  law  has  made  no  reference  to  dumping- 
ground,  and  though  both  methods  of  obtaining  such  space  will 
undoubtedly  be  protected,  the  millsite  location  is  preferable, 
and  it  can  be  patented  when  any  of  the  lodes  cut  are  patented. 

When  the  claimant  has  cut  a  vein  which  he  may  consider 
worthy  of  appropriating,  he  has  made  a  mineral  discovery,  and 
in  consequence  should  locate  the  lode  or  ground  which  his  tun 
nel  right  has  reserved  until  he  could  make  a  discovery.  If  the 
structural  features  and  proximity  of  the  vein  to  the  surface  are 


TUNNEL  SITE  LOCATION  105 

such  as  to  enable  one  to  say  with  positiveness  where  the  apex 
should  be  on  the  surface,  the  location  should  be  laid  out  upon 
the  surface  with  the  location  stake  equidistant  from  the  side 
lines  and  upon  the  presumed  apex  over  the  discovery  below. 
The  intersection  of  the  vein  and  tunnel  must  be  within  the 
claim.  No  surface  work  or  surface  discovery  is  required.  The 
claimant  can  now  proceed  to  patent  upon  the  work  done  in 
the  tunnel.  If  the  claim  cannot  be  laid  out  upon  the  surface, 
due  to  the  vague  whereabouts  of  the  apex,  the  vein  should  be 
located  by  placing  a  location  notice  describing  it,  at  the  mouth 
of  the  tunnel,  and  recording  the  same.  If  the  claim  is  not  laid 
out  on  the  surface,  it  is  of  course  impossible  to  patent  the 
vein.  Annual  labor  will  be  required  in  both  cases,  unless  pat 
ented,  and  may  be  done  through  the  tunnel.  It  is  sometimes 
possible  in  the  case  of  a  long  tunnel  run  for  the  development 
of  a  distant  group  of  claims,  to  locate  the  tunnel  as  a  tunnel 
site,  and  apply  the  work  therein  as  annual  labor  and  patent 
work  upon  any  blind  lodes  cut  and  the  located  claims  ahead. 


CHAPTER  XVI 

Patent 

R.  S.,  Sec.  2325:  A  patent  for  any  land  claimed  and 
located  for  valuable  deposits,  may  be  obtained  in  the 
following  manner:  any  person,  association,  or  corpora 
tion  authorized  to  locate  a  claim  under  this  chapter, 
having  claimed  and  located  a  piece  of  land  for  such  pur 
poses,  who  has,  or  have,  complied  with  the  terms  of 
this  chapter,  may  file  in  the  proper  land  office  an  appli 
cation  for  a  patent,  under  oath,  showing  such  compliance, 
together  with  a  plat  and  field  notes  of  the  claim  or 
claims  in  common,  made  by  or  under  the  direction  of 
the  United  States  surveyor-general,  showing  accurately 
the  boundaries  of  the  claim  or  claims,  which  shall  be  dis 
tinctly  marked  by  monuments  on  the  ground,  and  shall 
post  a  copy  of  such  plat,  together  with  a  notice  of  such 
application  for  a  patent,  in  a  conspicuous  place  on  the 
land  embraced  in  such  plat  previous  to  the  filing  of  the 
application  for  a  patent,  and  shall  file  an  affidavit  of  at 
least  two  persons  that  such  notice  has  been  duly  posted, 
and  shall  file  a  copy  of  the  notice  in  such  land  office, 
and  shall  thereupon  be  entitled  to  a  patent  for  the 
land,  in  the  manner  following:  the  register  of  the  land 
office,  upon  the  filing  of  such  application,  plat,  field 
notes,  notices,  and  affidavits,  shall  publish  a  notice  that 
such  application  has  been  made,  for  the  period  of  sixty 
days,  in  a  newspaper  to  be  by  him  designated  as  pub 
lished  nearest  to  such  claim;  and  he  shall  also  post 
such  notice  in  his  office  for  the  same  period.  The  claim 
ant  at  the  time  of  filing  this  application,  or  at  any  time 
thereafter,  within  the  sixty  days  of  publication,  shall 
file  with  the  register  a  certificate  of  the  United  States 
surveyor-general  that  $500  worth  of  labor  has  been  ex 
pended  or  improvements  made  upon  the  claim  by  him 
self  or  grantors;  that  the  plat  is  correct,  with  such 
/urther  description  by  such  reference  to  natural  objects 
or  permanent  monuments  as  shall  identify  the  claim, 
and  furnish  an  accurate  description  to  be  incorporated 
in  the  patent.  At  the  expiration  of  the  sixty  days  of 
publication  the  claimant  shall  file  his  affidavit,  show- 
106 


PATENT  107 

ing  that  the  plat  and  notice  have  been  posted  in  a  con 
spicuous  place  on  the  claim  during  such  period  of  pub 
lication.  If  no  adverse  claim  shall  have  been  filed  with 
the  register  and  the  receiver  of  the  proper  land  office 
at  the  expiration  of  the  sixty  days  of  publication,  it 
shall  be  assumed  that  the  applicant  is  entitled  to  a 
patent,  upon  the  payment  to  the  proper  officer  of  $5 
per  acre  [for  lode  claims,  or  $2.50  for  placer  claims], 
and  that  no  adverse  claim  exists;  and  thereafter  no  ob 
jection  from  third  parties  to  the  issuance  of  a  patent 
shall  be  heard,  except  it  be  shown  that  the  applicant 
has  failed  to  comply  with  the  terms  of  this  chapter  [the 
mining-law  Statutes]. 

The  steps  by  which  the  miner  develops  or  constructs  his  title 
or  ownership  to  a  lode  or  placer  claim,  are  by  initiating  a  pos 
sessory  right  by  making  a  discovery,  completing  it  by  the  acts  of 
location  and  record,  maintaining  it  from  year  to  year  by  annual 
labor;  and  perfecting  it  to  the  fee-simple  or  absolute  title  after 
placing  $500  worth  of  improvements  upon  it,  by  obtaining  patent 
for  it  from  the  General  Land  Office  at  Washington,  through 
entry  and  purchase  at  the  local  land  office. 

Much  has  been  said  and  written  about  the  strength  and  dignity 
of  the  possessory  right  acquired  by  location.  The  exaltation 
accorded  the  possessory  right  conies  from  its  being  the  first 
guardian  of  mining  rights,  the  swaddling  clothes  of  a  great 
industry,  rather  than  from  any  inwrought  strength  to  protect 
the  miner's  acquisition.  It  was  a  wise  provision  of  the  law 
that  made  location  of  a  claim  easy.  Had  the  miner  or  pros 
pector  been  required  to  go  forth  fully  panoplied  as  a  surveyor 
and  attorney,  perhaps  as  a  mineralogist  and  geologist  also, 
with  forms  and  legal  details  and  red  tape  to  comply  with,  the 
result  would  have  been  a  woeful  decrease  in  the  locations  made, 
the  holes  dug,  and  the  mines  found.  But  what  comes  easily, 
too  often  goes  easily.  Likewise,  the  possessory  right  acquired 
so  easily,  is  lost  too  easily.  The  lode  that  looks  good  and 
arouses  interest  sufficiently  to  acquire  it  by  possessory  right 
today,  will  perhaps  develop  tomorrow  into  something  considered 
worthy  of  holding  permanently.  The  locator  should  then 
change  his  easily  obtained,  easily  lost  title  to  the  strong  and 
secure  one  of  patent.  It  has  passed  into  an  axiom  that  to  de- 


108  MINING  LAW 

velop  a  mine  on  unpatented  ground  is  to  develop  a  lawsuit. 
Parties  engaged  in  acquiring  and  developing  mineral  ground 
seldom  examine  unpatented  claims,  unless  they  contain  an 
extraordinary  showing.  The  statement  is  often  made  that  the 
possessory  right  should  be  made  safer  and  more  conclusive  by 
changes  in  the  law  and  location  methods,  but  no  feasible  methods 
have  been  suggested.  One  of  the  suggested  methods  is  to  require 
that  the  location  be  entered  in  the  local  land  office  and  platted 
in  the  tract  books,  no  other  entry  to  be  allowed  upon  the  land 
until  the  existing  one  is  canceled  through  failure  to  file  proof 
of  annual  labor.  This  would  require  a  careful  survey,  and 
would  defeat  the  idea  of  making  location  easy,  with  its  attendant 
good  results.  The  possessory  right  of  location  is  good  and 
cannot  be  dispensed  with,  but  there  is  a  point  where  its  advisa 
bility  is  passed,  and  the  wise  miner  who  has  ground  which  he 
values,  will  patent  it  at  the  earliest  convenient  and  possible 
opportunity.  Between  the  two  extremes  of  possessory  right 
and  patent,  both  so  necessary,  there  appears  no  practical  inter 
mediate.  The  best  method  to  follow,  if  conditions  or  means 
do  not  warrant  doing  more  than  the  annual  labor  each  year, 
is  to  perform  the  work  in  a  common  improvement  or  system 
of  improvement,  and  as  soon  as  $500  worth  of  work  has  been 
done,  patent  the  most  valuable  claim  of  the  group,  and  as  each 
additional  $500  expenditure  is  made,  patent  an  additional  claim. 
Such  proceedings  are  now  permitted  under  most  conditions. 

The  miner  may  take  steps  toward  securing  patent  as  soon 
as  he  has  made  a  valid  location  according  to  the  Federal  Stat 
utes.  He  may  apply  for  an  official  patent  survey  on  the  same 
day  the  location  is  made,  and  proceed  as  speedily  toward  patent 
as  under  any  other  conditions,  since  the  $500  worth  of  im 
provements  may  be  made  at  any  time  before  the  expiration  of 
the  sixty-day  period  of  publication  of  notice  of  application  for 
patent.  Again,  the  miner  may  delay  applying  for  patent  as  long 
as  he  wishes,  or  need  never  ask  for  it,  but  continue  to  hold 
his  claim  by  location  or  possessory  right. 

The  obtaining  of  patent  to  a  mining  claim  requires  careful 
compliance  with  many  details  and  is  a  somewhat  lengthy  pro 
cedure.  To  the  layman,  the  various  details  and  the  extent  to 


PATENT  109 

which  it  is  insisted  that  they  be  complied  with,  seem  uncalled- 
for  technicalities  and  red  tape.  But  the  man  in  contact  with 
them,  in  office  and  field,  sees  their  wisdom  and  necessity.  Were 
it  not  for  the  painstaking  work  of  the  surveyors-general  and 
the  Land  Office,  there  would  be,  from  the  conditions  prevailing 
in  mining,  loopholes  for  endless  litigation,  and  to  a  still  greater 
extent  would  the  rights  of  miners  and  the  general  good  be 
trespassed  upon  in  a  way  that  could  hardly  be  reached  through 
litigation.  Proceedings  to  obtain  patent  may  be  divided  into 
three  stages:  (1)  The  official  patent  survey;  (2)  making  appli 
cation  for  patent  and  informing  the  world  thereof,  that  they 
may  take  steps  to  protect  any  asserted  rights;  (3)  entering 
the  land,  paying  the  purchase  price,  and  receiving  patent,  after 
the  Land  Office  has  determined  applicant's  right  to  purchase 
the  land.  Essentially,  obtaining  patent  to  a  mining  claim  is 
simply  obtaining  title  to  the  land  from  the  United  States,  just 
as  title  to  a  piece  of  agricultural  or  timber  land  would  be 
obtained. 

A  claim  held  by  possessory  right  requires  annual  labor  each 
year.  It  is  exposed  to  being  located  over  in  whole  or  part  at 
any  time,  and  during  a  long  absence  of  the  claimant  is  liable 
to  be  patented  by  others,  unless  he  is  continually  on  the  outlook. 
Even  the  lines  of  his  location  may  be  changed  by  confining 
his  ground  to  300  ft.  on  each  side  of  the  exposed  lode.  If  the 
showing  of  mineral  be  poor,  it  may  be  contested  and  perhaps 
defeated  by  an  agricultural  or  other  entry.  It  must  be  on  the 
guard  against  patent  application  of  conflicting  locations,  and 
adverse  them.  A  claim  held  by  patent  belongs  to  the  owner 
without  any  conditions,  except  those  attached  by  the  law  of 
extralateral  right,  known  lodes  in  placers,  or  tunnel-site  loca 
tions.  All  questions  of  adverse  ownership  of  the  ground  or  of 
defects  in  the  location  or  possessory  right,  are  estopped  by  the 
issuing  of  patent  and  cannot  thereafter  be  raised.  Except  the 
patented  claim  be  sold  for  unpaid  taxes  or  seized  for  debt,  the 
owner  cannot  be  divested  of  it,  however  much  he  may  neglect 
it,  unless  he  has  acquired  it  by  fraud  or  error  in  the  law.  If 
acquired  by  fraud  which  can  be  clearly  and  convincingly  shown, 
the  patent  may  be  broken  or  cancelled  by  suit  brought  for  the 


110  MINING  LAW 

Government  by  the  U.  S.  Attorney-General  or  his  assistants. 
But  the  Statute  of  Limitations  prescribes  that  such  suits  can 
only  be  brought  within  six  years  after  date  of  Issuing  patent. 
Suits  to  annul  a  patent  generally  cannot  be  brought  against 
an  innocent  purchaser.  A  patent  issued  through  error  or  mis 
take  in  the  law,  or  which  is  not  authorized  by  law,  is  invalid 
and  can  be  cancelled.  Where  the  patent  has  been  obtained  by 
the  wrong  party  through  fraud,  suit  may  be  brought  to  hold  him 
as  the  trustee  of  the  patent  until  conveyed  to  the  rightful  owner. 
After  patent  has  been  issued  by  the  Land  Department,  it  has 
lost  all  jurisdiction  over  the  land  and  cannot  recall  patent  under 
any  condition,  even  if  the  patent  document  has  not  been  delivered 
to  the  claimant.  What  may  be  termed  double  patent  can  issue 
in  certain  cases,  as  patent  for  mining  claims  on  original  State 
or  railroad  sections,  or  on  townsites,  and  known  lodes  patented  on 
prior  placer  patents. 


CHAPTER  XVII 
Lode  Patent — Survey 

No  title,  beyond  that  of  possession,  can  be  obtained  to  an  un- 
surveyed  tract  of  public  land.  No  agricultural  entry  can  be  made 
until  the  land  has  been  officially  surveyed  and  platted  into  sec 
tions.  Likewise,  no  patent  can  be  asked  for  a  mineral  location, 
until  an  official  survey  of  the  location  has  been  made  and  ap 
proved,  with  the  exception  of  placer  claims  conforming  to  legal 
subdivisions  and  upon  surveyed  land.  The  surveyors-general  of 
the  different  land  districts,  having  charge  of  all  official  surveys 
of  public  lands,  are  empowered  to  appoint  deputy  mineral  sur 
veyors  to  make  official  surveys  of  mining  claims  for  patent.  The 
appointments  can  be  secured  by  any  one  who  has  the  necessary 
proficiency  in  the  work,  is  of  good  character,  and  can  give  the 
required  bond.  Examinations  are  given  for  those  who  have  not 
attended  accredited  schools.  The  instructions  regarding  the  sur 
vey  of  mining  claims  are  issued  by  the  General  Land  Office  under 
the  title  'Manual  of  Instructions  for  the  Survey  of  the  Mineral 
Lands  of  the  United  States.'  They  form  Appendix  C  of  this 
work. 

The  applicant  for  a  mineral  survey  should  first  select  a  deputy 
mineral  surveyor  of  the  land  district,  and  arrange  with  him  on 
the  consideration  for  the  survey.  The  surveyor's  charges  are 
paid  by  the  applicant;  the  Government  has  nothing  to  do  with 
them,  beyond  requiring  that  they  be  not  excessive.  The  applicant 
should  discuss  with  the  surveyor,  the  'Circular  to  Applicants  for 
Mineral  Surveys,'  appearing  as  Appendix  A  of  the  'Manual  of 
Instruction  for  the  Survey  of  the  Mineral  Lands  of  the  United 
States,'  and  especially  considering  as  to  whether  a  preliminary 
survey  should  be  made  before  obtaining  an  official  order  for 
survey.  The  applicant  then,  or  after  preliminary  survey,  if  one 
be  made,  applies  to  the  surveyor-general  of  the  district  for  an 

111 


112  MINING  LAW 

official  order  of  survey,  to  be  executed  by  the  selected  deputy. 
Application  should  contain  name  or  names  of  the  applicants  in 
full,  of  each  location,  of  the  land  and  mining  district,  and  of  the 
deputy  desired.  Accompanying  must  be  certified  copies  of  the 
recorded  original  and  any  amended  location  notices  of  each  loca 
tion.  The  applicant  must  deposit  with  some  assistant  U.  S. 
Treasurer  or  designated  depository,  to  the  credit  of  the  U.  S. 
Treasurer,  a  sum  sufficient  to  cover  the  charges  in  the  surveyor- 
general's  office.  Triplicate  certificates  of  deposit  are  taken.  The 
original  is  mailed  to  the  Secretary  of  the  Treasury  at  Wash 
ington,  the  duplicate  is  enclosed  with  the  application  to  the  sur 
veyor-general,  and  the  triplicate  is  retained  by  the  applicant. 

The  charges  in  the  different  offices  of  the  surveyors-general  for 
checking  and  platting  the  survey  vary,  but  are  about  as  follows: 
For  lode  claims,  singly  or  in  groups,  each,  $30;  for  placer  claim, 
$35;  for  millsite  claim,  $30;  for  millsite  included  with  lode  sur 
vey,  $30;  for  each  lode  location  included  in  placer  survey,  $30; 
for  group  of  placer  locations,  first  location,  $35;  for  group  of 
placer  locations,  all  after  first  location,  each,  $30;  for  affidavit  of 
$500  expenditure,  filed  after  approval  of  survey,  $5.  Should  an 
amended  order  for  survey  issue,  an  additional  deposit  will  be 
required.  By  a  recent  Act  of  Congress,  any  excess  in  the  amount 
of  deposit,  over  and  above  the  actual  cost  of  work  performed,  or 
the  whole  of  any  unused  deposit,  will  be  returned. 

The  surveyor-general  gives  the  application  a  number  by  which 
the  survey  is  thereafter  known,  and  issues  an  order  for  the  sur 
vey  to  the  designated  deputy,  enclosing  copies  of  the  location 
notices  filed.  The  survey  will  have  priority  in  being  checked, 
platted,  and  approved  in  the  surveyor-general's  office,  over  all 
subsequent  numbered  surveys,  unless  it  should  be  abandoned  or 
the  applicant  and  deputy  should  still  continue  to  delay  filing  the 
survey  notes  after  notice  is  given  them  to  do  so. 

The  next  step  is  for  the  deputy  mineral  surveyor  to  go  upon 
the  claim  with  his  instruments  and  assistants,  and  make  the 
survey.  He  must  personally  take  charge  of  the  field  work.  In 
making  the  survey,  which  may  be  a  single  location  or  a  group, 
for  the  contiguous  claims  of  an  applicant  may  be  jointly  surveyed 
under  one  application  and  number,  each  location  must  be  surveyed 


LODE  PATENT-SURVEY  113 

as  a  separate  claim.  The  lines  of  the  patent  survey  must  be 
kept  within  the  lines  of  the  location  as  determined  by  its  staking, 
not  by  the  specifications  of  the  location  notice.  The  lines  may  be 
drawn  in  and  within  the  location  boundaries  to  accomplish  any 
desired  or  necessary  end,  but  they  cannot  be  extended  beyond. 
Surveyors  do  sometimes  extend  their  lines  and  set  patent  corners 
outside  the  area  of  the  location,  representing  or  placing  location 
corners  where  they  were  not.  This  is  in  defiance  of  strict  orders 
of  the  Land  Department,  and  when  detected,  invariably  requires 
a  corrected  survey  and  all  subsequent  steps  taken  anew.  If  the 
deputy  finds  serious  discrepancies  between  the  location  notice 
and  the  claims  as  staked,  or  in  the  case  of  a  group  poorly  laid 
out,  must  leave  many  fractions  that  defeat  the  contiguity  of  the 
claims,  he  will  report  the  circumstances  to  the  surveyor-general, 
and  an  amended  order  for  survey  will  be  arranged  for,  to  include 
certified  copies  of  the  amended  location  certificates  filed  after 
the  lines  are  straightened  out  and  corrected  by  a  preliminary 
survey.  The  amended  order  for  survey  may  perhaps  be  given  a 
new  number. 

It  is  practically  impossible  to  survey  a  group  of  claims  for 
patent,  unless  they  have  at  some  time  been  surveyed  in  a  pre 
liminary  way  and  the  corners  adjusted,  which  of  course  requires 
an  amended  location.  The  preliminary  survey  is  often  made  just 
as  a  patenF  survey,  and  after  order  for  survey  is  issued  and  a 
number  assigned,  the  deputy  returns  and  merely^  marks  the  posts. 
This  is  not  in  harmony  with  the  Land  Office  regulations  saying 
that  the  patent  survey  must  be  made  by  the  mineral  surveyor  in 
person,  after  receipt  of  order,  and  without  reference  to  any 
knowledge  he  may  have  previously  acquired  by  reason  of  having 
made  the  location  survey  or  otherwise.  It  may  be  asked,  why 
should  the  requirement  that  the  patent  lines  of  each  claim  keep 
within  the  location,  be  so  rigidly  enforced?  Because  if  it  were 
not  so  enforced,  patent  lines  would  be  thrown  outside  of  the 
locations  indiscriminately,  and  the  locations  of  others  encroached 
upon. 

The  deputy  is  required  to  identify  the  stakes  or  corners  of  the 
locations,  or  learn  from  reliable  authority  where  they  existed, 
and  represent  them  upon  his  plat  by  bearing  and  distance  from 


114  MINING  LAW 

the  patent  corner,  if  not  identical.  On  the  plat  these  location 
corners  are  indicated  by  the  letters  L.  C.  While  the  disappear 
ance  of  the  corner  stakes  of  a  location  does  not  invalidate  it,  the 
applicant  may  save  himself  trouble  by  resurrecting  them  before 
patent  survey  is  made.  The  survey  should  be  made  by  traversing 
the  claim,  running  all  the  boundaries.  It  is  not  necessary  to  run 
the  theoretical  lode  or  centre  line,  though  the  discovery  post  on 
it  must  be  accurately  set.  Claims  are  often  surveyed  in  opposi 
tion  to  Land  Office  rules  by  running  the  centre  or  lode  lines 
and  making  offsets  to  the  corners.  A  corner  post  or  monument 
must  be  set  at  each  corner  or  angle  of  the  claim  boundaries,  and 
a  discovery  post  on  the  centre  or  lode  line  at  the  point  men 
tioned  in  the  location  certificate  as  the  location  or  discovery 
point  or  stake. 

The  corners  may  be  a  rock  approximating  24  inches  in  length, 
with  a  mound  of  stone  alongside,  a  rock  in  place,  or,  and  gen 
erally,  a  dressed  post  four  inches  square  and  three  feet  or  more 
long.  Iron  pipes  with  brass  caps  similar  to  the  bench-marks  of 
the  Geological  Survey  and  the  corners  now  being  used  in  public- 
land  surveys,  are  recommended  by  the  Land  Department.  The 
corner  nearest  a  public-land  survey  corner  or  mineral  monument, 
is  always  taken  as  corner  No.  1  of  the  claim.  This  corner  should 
be  marked  on  the  side  facing  the  claim  with  the  initials  of  name 
of  the'  claim,  the  claim  corner  number,  and  the  survey  number, 
as  'N.Y. — 1 — 4750,'  which  means,  corner  No.  1  of  patent  survey 
No.  4750  of  the  New  York  claim.  A  few  of  any  suitable  trees 
within  reasonable  distaance  should  be  blazed  on  a  side  facing 
the  corner  post  as  bearing  trees,  marked  'B.T. — N.Y. — 1 — 4750,' 
and  recorded  in  the  survey  notes.  Large  rocks  in  place  may  also 
be  used  for  this  purpose  as  bearing  rocks,  marked  B.R.,  etc. 
Where  the  corner  cannot  be  set  at  the  proper  point,  a  witness 
corner  is  placed  on  the  line  as  near  point  as  possible,  and  in 
scribed  with  the  initials  W.C.,  in  addition  to  the  other  markings. 
The  corners  of  each  claim  are  numbered  consecutively  from  1 
up,  as  above.  The  discovery  post  in  this  survey  should  be  marked 
'Dis. — N.Y. — 4750.'  If  two  or  more  claims  corner  in  the  same 
spot,  the  same  post  should  be  used,  even  if  the  claims  are  owned 
by  different  people.  The  initials,  the  corner  number,  and  the 


LODE  PATENT-SURVEY  115 

survey  number  of  each  claim  should  go  on  the  proper  faces  of 
the  post.  It  is  only  recently  that  the  practice  of  initialing  the 
posts  has  been  established;  most  older  claim  stakes  are  without 
the  claim  initials.  Where  a  post  is  the  corner  of  several  claims 
of  the  same  survey  number,  the  corner  numbers  have  sometimes 
all  been  placed  on  one  face,  as  1 — 1 — 2 — 4 — 4750,  whereas  the 
better  way  would  have  been  as  stated  before,  1 — 4750,  1 — 4750, 
2 — 4750,  and  4 — 4750  on  the  proper  faces.  Corner  No.  1  of  each 
claim  must  be  connected  with  a  section  or  quarter-section  corner 
of  the  public-land  surveys  or  a  mineral  monument,  if  within 
two  miles,  preferably  with  a  public-land  survey  corner.  In  the 
absence  of  either  within  that  distance,  a  new  mineral  monu 
ment  should  be  established.  This  tie  line  must  be  run  and  not 
obtained  by  previous  knowledge  or  ties  calculated  through  other 
points.  With  a  group,  it  is  customary  to  connect  the  corner  of 
one  claim  with  the  tie  monument  by  an  actual  line,  and  calculate 
the  other  required  ties  through  the  survey  lines  of  the  group. 
The  conflicts  and  contiguity  with  other  patent  surveys  must  be 
shown,  but  those  with  unsurveyed  claims  need  not  be. 

The  deputy  cannot  make  an  official  survey  of  any  claim  in 
which  he  holds  any  interest,  real  or  contingent.  He  cannot  act 
as  an  attorney  in  the  patent  application.  He  cannot  employ 
chainmen  interested  in  the  property.  He  must  correct  errors  in 
the  survey  due  to  carelessness  or  neglect,  at  his  own  expense, 
under  penalty  of  suspension. 

At  time  of  making  the  survey,  the  development  work  or  ex 
penditure  of  $500  for  the  benefit  of  each  claim  is  measured  up; 
or  if  it  is  not  performed  or  finished  at  that  time,  the  deputy  may 
return  later  and  measure  it. 

Returning  from  the  field,  the  deputy  prepares  his  field  notes 
and  plat,  and  files  them  with  the  surveyor-general.  The  em 
ployees  of  the  surveyor-general's  office  check  the  field  notes  and 
compare  them  with  adjoining  official  surveys.  Many  errors  are 
bound  to  occur  in  view  of  the  close  accuracy  required,  which  the 
deputy  must  correct.  From  the  corrected  notes  and  plat,  the 
final  plat  is  made  up,  and  the  claim  or  claims  platted  upon  the 
'connected  plat'  of  the  surveyor-general,  which  contains  and 
shows  the  relative  positions  of  all  the  claims  in  each  district. 


116  MINING  LAW 

The  corrected  field  notes,  known  as  the  'approved  field  notes', 
and  plat  are  retained  in  bound  form  in  the  surveyor-general's 
office,  open  to  public  inspection.  The  surveyor-general  sends  one 
copy  of  the  plat  to  the  local  land  office  in  which  patent  appli 
cation  must  be  filed,  and  two  copies  of  the  plat  and  one  of 
the  approved  field  notes  to  the  deputy  mineral  surveyor  for  the 
applicant. 

The  surveyor-general's  connection  with  the  proposed  patent 
now  ceases,  unless  the  $500  expenditure  has  not  been  filed. 
This  may  be  filed  subsequent  to  the  field  notes.  It  is  the  sworn 
statement  of  the  deputy  regarding  the  work  done,  its  value, 
and  that  it  has  been  performed  by  the  patent  applicant  or  his 
grantors.  The  surveyor-general  examines  this  to  see  that  the 
work  is  of  the  character  and  the  amount  required,  approves  it, 
and  forwards  his  certificates  to  the  deputy  or  the  local  land 
office. 

The  applicant,  by  these  survey  proceedings,  acquires  no  fur- 
'ther  right  to  the  ground  beyond  that  contained  in  his  possessory 
right,  than  such  additional  constructive  right  as  the  better  mark 
ing  of  his  claim  and  the  official  filing  of  its  exact  position  and 
boundaries  may  give.  It  is  just  as  necessary  to  perform  annual 
labor,  and  to  adverse  the  prior  application  for  patent  of  any 
conflicting  location,  as  before  steps  were  taken  for  patent  sur 
vey.  However,  there  is  some  safety  given  the  claims  by  the 
officially  marked  posts,  which  will  lead  many  people  to  believe 
the  claims  are  patented.  Because  the  posts  bear  official  survey 
numbers,  is  no  sign  that  they  are  or  are  not  patented;  only 
inquiry  at  the  local  land  office  can  develop  this,  though  the 
surveyor-general  does  keep  a  list,  and  all  patented  claims  are 
eventually  listed  by  county  recorders  for  the  purpose  of  taxa 
tion.  So  far  the  applicant  has  not  made  any  real  steps  toward 
patent;  he  has  simply  had  his  ground  officially  surveyed.  He 
is  under  no  compulsion  to  proceed  further. 


CHAPTER  XVIII 
Lode  Patent — Application  and  Entry 

The  proceedings  in  the  surveyor-general's  office  having  closed, 
with  the  exception  of  where  the  $500  expenditure  has  not  yet 
been  filed  and  approved,  the  second  step — that  of  obtaining  the 
patent  proper — is  now  taken  in  the  local  land  office.  The  appli 
cant  may  begin  the  second  step  immediately  upon  the  approval 
of  his  survey  by  the  surveyor-general,  or  he  may  delay  for  years 
without  losing  any  of  the  rights  gained  by  the  survey.  The 
second  step  can  only  be  taken  on  the  survey  by  the  applicant 
or  his  grantees.  Anyone  who  may  have  located  the  ground  in 
the  event  of  the  annual  labor  not  having  been  performed,  must 
have  a  new  survey  made. 

Five  copies  of  a  notice  of  application  for  patent,  containing 
a  full  description  of  the  claim  or  claims,  are  prepared.  One 
copy  is  posted  at  a  conspicuous  point  on  the  claim  or  group 
included  in  the  application,  such  as  at  the  shaft,  mouth  of  tun 
nel,  boarding-house,  or  in  a  similar  position.  This  posting  is 
done  in  the  presence  of  two  disinterested  witnesses,  who  make 
affidavit  to  the  fact.  The  affidavits  are  attached  to  the  second 
copy  for  filing  in  the  land  office  as  proof  of  posting.  There 
is  also  posted  with  the  notice  on  the  claim,  one  of  the  plats 
delivered  to  the  claimant  by  the  surveyor-general.  These  are 
usually  fastened  inside  of  a  box  covered  with  a  canvas  flap, 
so  that  anyone  is  easily  able  to  see  them,  and  yet  they  are 
protected  from  the  elements.  They  must  remain  posted  during 
the  sixty  days  of  publication,  and  after  removal  are  desirable  to 
keep  for  reference,  especially  the  plat.  The  third  copy  of  the 
notice  goes  to  the  publisher  of  a  newspaper  published  nearest 
the  claim,  to  be  published  as  an  advertisement  for  a  period  of 
sixty  days.  If  a  weekly  paper,  nine  consecutive  insertions  are 
required;  if  a  daily,  for  sixty-one  consecutive  insertions.  The 

117 


118  MINING  LAW 

fourth  copy  is  posted  in  the  land  office  during  the  period  of 
publication.  A  fifth  copy  is  required  by  many  land  offices  to 
send  to  the  Government  inspector. 

The  three  notices  of  application  for  patent,  one  posted  on  the 
claims,  one  published  in  the  newspaper  nearest  the  claims,  and 
one  posted  in  the  local  land  office,  are  notice  to  the  world 
that  application  is  being  made  for  patent,  and  that  all  should 
govern  themselves  accordingly.  That  is,  that  those  who  claim 
the  ground  or  any  portion  of  it  under  another  and  adverse  loca 
tion,  must  file  an  adverse  against  the  patent  during  the  sixty 
days  of  publication  (in  Alaska  the  time  has  been  extended  to 
within  eight  months  after  the  sixty  days)  or  stand  as  having 
no  claim  to  the  ground.  This  is  notice  also  that  those  who  may 
have  an  ax  to  grind  and  wish  to  protest  against  the  issuing  of 
patent  on  ground  that  some  law  or  requirement  of  weight  has 
not  been  complied  with,  may  do  so  up  to  date  of  issuing  patent. 

At  the  time  the  notices  are  being  disposed  of,  the  first  set 
or  'application  for  patent'  papers  are  filed  in  the  local  land 
office.  They  consist  of,  one  of  the  final  plats  and  the  approved 
field  notes  delivered  applicant  by  surveyor-general;  the  second 
copy  of  notice  of  application  for  patent  with  attached  affidavits, 
being  proof  of  posting  notice  on  claim;  the  fourth  copy  of  the 
notice,  being  the  one  posted  in  the  land  office;  the  fifth  copy  of 
the  notice  being  the  one  to  be  forwarded  to  the  local  chief  of 
field  division  by  the  local  land  office;  the  application  for  patent, 
or  mineral  application,  which  recites  the  facts  and  conditions 
and  asks  that  patent  be  granted;  a  description  of  the  vein  or 
lode  or  mineral  character  of  the  land;  an  abstract  of  title 
showing  full  title  in  the  applicant  or  applicants;  proof  that 
applicant  or  applicants  are  citizens  of  the  United  States;  pub 
lisher's  agreement  that  he  will  publish  notice  of  application  for 
patent  and  hold  applicant  alone  responsible  for  charges;  and 
the  notice  to  be  published.  Together  with  this  set  of  application 
papers,  a  filing  fee  of  $10  is  paid.  When  this  filing  is  made, 
an  application  number  is  given  it.  The  surveyor-general,  in 
approving  the  survey,  approves  all  ground  within  the  bound 
aries.  The  land  office,  in  giving  the  application  a  number,  re 
moves  from  it  all  the  conflicting  ground  of  prior  applications. 


APPLICATION  AND  ENTRY  119 

This  makes  it  necessary  for  the  application  to  adverse  prior 
applications  for  any  conflicting  ground,  but  unnecessary  to  take 
steps  against  subsequent  applications. 

The  second  set  or  'final  entry'  papers  filed  after  expiration  of 
period  of  publication,  consist  of,  proof  of  continuous  posting  of 
plat  and  notice  upon  the  ground  during  the  sixty  days  of  publi 
cation,  made  by  affidavit  of  applicant;  proof  of  publication  of 
notice  by  affidavit  of  publisher;  proof  of  payment  of  all  charges 
and  fees  for  publication,  survey,  land  office  fees,  and  purchase 
price  of  land,  by  affidavit  of  claimant;  and  application  to  pur 
chase  the  land  from  the  Government.  On  the  presentation  of 
the  final  entry  set  of  papers,  the  register  makes  proof  that 
notice  of  application  for  patent  remained  continuously  posted 
in  the  land  office  during  the  sixty  days  of  publication.  If,  during 
the  period  of  publication,  no  adverse  claim  was  filed  against 
the  application,  and  there  are  now  no  protests  or  other  objec 
tions,  applicant  will  be  permitted  to  pay  the  purchase  price  of 
$5  per  acre  for  lode  claims  ($2.50  for  placer  claims),  and  receive 
the  receiver's  receipt  for  the  money.  The  certificate  of  final 
entry  as  a  result  of  paying  the  purchase  price,  and  the  original 
of  the  receiver's  receipt,  is  now  added  to  the  papers,  and  the 
whole  record  is  forwarded  to  the  General  Land  Office  at  Washing 
ton,  where  it  is  examined,  and,  if  found  regular,  the  patent 
document  is  issued  and  forwarded  to  the  local  land  office,  where 
the  applicant  receives  it  in  exchange  for  his  receiver's  receipt, 
usually  from  six  to  eight  months  after  final  entry. 

The  $500  expenditure  as  required  by  the  Statute,  may  be 
made  at  any  time  before  the  expiration  of  the  sixty-day  period 
of  publication.  The  filing  of  the  surveyor's  affidavit  of  the 
expenditure  need  not  be  done  before  the  expiration  of  publica 
tion  period.  After  filing  of  application  for  patent,  and  affidavit 
of  expenditure  if  the  same  follows,  a  copy  of  the  application  is 
forwarded  the  chief  of  the  local  field  division,  who  will  have 
field  examination  made  of  the  claim  and'  entry.  This  examina 
tion  is  confined  mainly  to  conditions  found  in  the  field,  but 
will  take  up  any  question  whatever  relating  to  the  entry.  The 
conformity  of  the  survey  to  the  location  in  all  its  phases  will 
be  investigated.  The  nature  of  the  survey  will  be  examined, 


120  MINING  LAW 

lines  may  even  be  retraced.  Whether  the  various  details  of 
patenting  have  been  complied  with;  if  the  claims  are  essen 
tially  mineral  land,  taken  up  as  'bona  fide  mineral  claims,  and 
not  for  some  other  and  unwarranted  purpose;  whether  the  nec 
essary  expenditure  has  been  made;  was  it  performed  by  the 
applicant  or  his  grantors;  whether  it  develops  the  claim  as 
contemplated  by  law;  whether  the  rights  of  other  locators  have 
been  encroached  upon,  and  similar  matters,  are  investigated. 
While  the  miner  must  initiate  and  fight  his  own  adverse  cases, 
these  examinations  directly  and  indirectly  give  invaluable  aid 
to  miners  whose  rights  are  being  or  are  liable  to  be  encroached 
upon.  They  have  a  good  moral  effect  in  decreasing  the  tendency 
to  fraud  and  underhand  work  by  applicants,  which  the  surveyors- 
general  and  General  Land  Office  are  unable  to  reach,  and  which 
only  field  investigations  will  reveal. 

The  reports  of  the  mineral  examiners  and  special  agents  are 
made  to  the  Commissioner  of  the  General  Land  Office,  and  are 
confidential.  The  patent  proceedings  usually  progress  without 
reference  to  these  reports,  but  patent  does  not  issue  until  they 
are  received.  If  a  report  is  adverse,  and  after  having  been 
considered  by  the  General  Land  Office  it  is  held  that  the  charges 
are  sufficient,  if  true,  to  warrant  the  rejection  or  cancellation 
of  the  entry  or  claim,  a  notice  of  the  charges  is  served  upon 
the  entryman  or  claimant,  who  is  allowed  thirty  days  to  file 
in  the  local  land  office  a  denial  under  oath  of  the  charges, 
with  an  application  for  a  hearing  before  the  register  and  the 
receiver.  The  charges  made  in  the  adverse  report  are  in  the 
nature  of  a  protest  against  the  patent  by  the  Government,  and 
in  the  hearing  of  these  charges  must  be  supported  for  the  Gov 
ernment  by  the  special  agent  or  examiner  making  them.  The 
usual  appeals  from  the  decision  of  the  register  and  receiver 
can  be  made  to  the  Commissioner  of  the  General  Land  Office 
and  the  Secretary  of  the  Interior.  Upon  receipt  of  these  charges 
the  local  land  office  will  not  allow  entry,  unless  already  made, 
until  the  protest  is  removed.  If  the  claims  for  patent  lie 
within  a  Forest  Reserve,  they  will  also  be  inspected  by  a  local 
Forest  Service  officer.  The  purpose  of  this  examination  is  to 
see  that  the  claims  are  'bona  fide  mining  claims  and  not  taken 


APPLICATION  AND  ENTRY  121 

up  as  a  cloak  to  fraudulently  secure  land  for  other  purposes, 
also  that  the  allowance  of  patent  will  not  prejudice  the  interests 
of  the  National  Forests. 


CHAPTER  XIX 
Patent — Placer,  Known  Lodes  Within  Placers,  Millsites 

The  subject  of  placers  and  known  lodes  within  placers,  to 
gether  with  the  Statutes  governing,  has  been  treated  at  length 
under  the  headings  'Placer  Location'  and  'Lodes  Within  Placers.' 
Likewise,  the  subject  of  millsites  has  been  treated  under  'Mill- 
site  Location.'  The  Land  Office  regulation  59  says,  concerning 
patents  on  placer  claims,  "the  proceedings  for  obtaining  patents 
for  veins  or  lodes  having  already  been  fully  given,  it  will  not 
be  necessary  to  repeat  them  here,  it  being  thought  that  careful 
attention  thereto  by  applicants  and  the  local  officers  will  enable 
them  to  act  understandingly  in  the  matter,  and  make  such  slight 
modifications  in  the  notice,  or  otherwise,  as  may  be  necessary 
in  view  of  the  different  nature  of  the  two  classes  of  claims." 

Placer  claims  upon  surveyed  land  and  conforming  to  the 
public-land  surveys,  require  no  survey  nor  any  proceedings  in 
the  surveyor-general's  office.  Claims  not  upon  surveyed  land 
or  not  conforming  to  the  legal  subdivisions  when  upon  surveyed 
land,  are  required  to  be  surveyed  by  a  deputy  mineral  surveyor 
under  proceedings  similar  to  the  case  of  lode  claims.  Claims 
of  the  first  class,  when  described  by  legal  subdivisions,  may  be 
entered  at  once  in  the  local  land  office  for  patent,  after  which 
the  proceedings  in  both  cases  are  practically  the  same  as  with 
lode  claims. 

"In  placer  locations,  in  addition  to  the  recitals  necessary  in 
and  to  both  vein  or  lode  and  placer  applications,  the  placer 
application  should  contain,  in  detail,  such  data  as  will  support 
the  claim  that  the  land  applied  for  is  placer  ground  containing 
valuable  mineral  deposits  not  in  vein  or  lode  formation,  and 
that  title  is  sought  not  to  control  watercourses  or  to  obtain 
valuable  timber,  but  in  good  faith  because  of  the  mineral  therein. 
This  statement,  of  course,  must  depend  upon  the  character  of 
122 


KNOWN  LODES— MILLSITES  123 

the  deposit  and  the  natural  features  of  the  ground,  but  the 
following  details  should  be  covered  as  fully  as  possible:  If  the 
claim  be  for  a  deposit  of  placer  gold,  there  must  be  stated  the 
yield  per  pan,  or  cubic  yard,  as  shown  by  prospecting  and  de 
velopment  work,  distance  to  bedrock,  formation  and  extent  of 
the  deposit,  and  all  other  facts  upon  which  he  bases  his  alle 
gation  that  the  claim  is  valuable  for  its  deposits  of  placer  gold. 
If  it  be  a  building  stone  or  other  deposit  than  gold  claimed 
under  the  placer  laws,  he  must  describe  fully  the  kind,  nature, 
and  extent  of  the  deposit,  stating  the  reasons  why  same  is  by 
him  regarded  as  a  valuable  mineral  claim.  He  will  also  be 
required  to  describe  fully  the  natural  features  of  the  claim; 
streams,  if  any,  must  be  fully  described  as  to  their  course, 
amount  of  water  carried,  fall  within  the  claim;  and  he  must 
state  kind  and  amount  of  timber  and  other  vegetation  thereon 
and  adaptability  to  mining  or  other  uses.  If  the  claim  be  all 
placer  ground,  that  fact  must  be  stated  in  the  application  and 
corroborated  by  accompanying  proofs;  if  of  mixed  placers  and 
lodes,  it  should  be  so  set  out,  with  a  description  of  all  known 
lodes  situated  within  the  boundaries  of  the  claim.  A  specific 
declaration,  such  as  is  required  by  section  2333,  Revised  Stat 
utes,  must  be  furnished  as  to  each  lode  intended  to  be  claimed. 
All  other  known  lodes  are,  by  the  silence  of  the  applicant, 
excluded  by  law  from  all  claim  by  him,  of  whatsoever  nature, 
possessory  or  otherwise.  While  this  data  is  required  as  a  part 
of  the  mineral  surveyor's  report  under  paragraph  167,  in  case 
of  placers  taken  by  special  survey,  it  is  proper  that  the  appli 
cation  for  patent  incorporate  these  facts  under  the  oath  of  the 
claimant.  Inasmuch  as  in  case  of  claims  taken  by  legal  sub 
divisions,  no  report  by  a  mineral  surveyor  is  required,  the 
claimant,  in  his  application  in  addition  to  the  data  above  re 
quired,  should  describe  in  detail  the  shafts,  cuts,  tunnels,  or 
other  workings  claimed  as  improvements,  giving  their  dimen 
sions,  value,  and  the  course  and  distance  thereof  to  the  nearest 
corner  of  the  public  surveys.  As  prescribed  by  paragraph  25, 
this  statement  as  to  the  description  and  value  of  the  improve 
ments  [the  $500  expenditure  for  patent  purposes]  must  be  cor- 


124  MINING  LAW 

roborated  by  the  affidavits  of  two  disinterested  witnesses."    (Land 
Office  regulation  60.) 

Where  the  claim  must  be  surveyed  for  patent,  the  deputy 
mineral  surveyor  must  make  a  report  in  accordance  with  regu 
lation  167  of  the  Land  Department: 

"Mineral  surveyors  are  required  to  make  full  examinations 
of  all  placer  claims  at  the  time  of  the  survey,  and  file  with  the 
field  notes  a  descriptive  report,  in  which  will  be  described: 
(a)  The  quality  and  composition  of  the  soil,  and  the  kind  and 
amount  of  timber  and  other  vegetation.  (&)  The  locus  and  size 
of  streams,  and  such  other  matter  as  may  appear  upon  the  sur 
face  of  the  claims,  (c)  The  character  and  extent  of  all  surface 
and  underground  workings,  whether  placer  or  lode,  for  mining 
purposes,  locating  and  describing  them,  (a)  The  proximity  of 
centres  of  trade  or  residence,  (e)  The  proximity  of  well  known 
systems  of  lode  deposits  or  of  individual  lodes,  (f)  The  use 
or  adaptability  of  the  claim  for  placer  mining,  and  whether 
water  has  been  brought  upon  it  in  sufficient  quantity  to  mine 
the  same,  or  whether  it  can  be  procured  for  that  purpose. 
(g)  What  works  or  expenditures  have  been  made  by  the  claim 
ant  or  his  grantors  for  the  development  of  the  claim,  and  their 
situation  and  location  with  respect  to  the  same  as  applied  for. 
(h)  The  true  situation  of  all  mines,  salt  licks,  salt  springs,  and 
millsites  which  come  to  the  surveyor's  knowledge,  or  a  report 
by  him  that  none  exist  on  the  claim,  as  the  facts  may  warrant. 
(i)  Said  report  must  be  made  under  oath  and  duly  corrobor 
ated  by  one  or  more  disinterested  persons." 

A  placer  claim  requires  improvements  to  the  amount  of  $500 
before  being  patented,  just  as  in  the  case  of  lode  claims.  A 
single  claim  of  160  acres  requires  only  $500  worth  of  work, 
just  as  a  smaller  claim  of  20  acres  would.  Affidavit  of  the 
expenditure  is  made  by  the  deputy  mineral  surveyor  who  sur 
veys  the  claim  for  patent,  or  in  case  of  a  claim  by  legal  sub 
divisions  and  without  patent  survey,  the  affidavit  of  expendi 
ture  may  consist  of  the  affidavit  of  two  or  more  disinterested 
witnesses. 

Known  lodes  within  placer  claims  may  be  patented  by  any 
one  locating  them,  whether  the  owner  of  the  placer  ground  or 


KNOWN  LODES— MILLSITES  125 

otherwise.  To  patent  a  known  lode  within  a  placer  requires 
survey  and  entry  just  as  with  any  other  lode  claim,  with  the 
exception  that  where  the  land  has  already  been  applied  for  or 
patented  as  a  placer  claim  without  excluding  the  lode,  a  hear 
ing  will  be  held  in  the  local  land  office  to  determine  if  the  lode 
is  a  known  lode  as  contemplated  by  the  Statute,  and  therefore 
impliedly  reserved  from  the  placer  patent  by  the  Statute  for  the 
benefit  of  whoever  may  locate  it. 

No  special  conditions  enter  into  the  patenting  of  a  millsite. 
Those  attached  to  a  lode  claim  may  be  entered  with  the  lode 
claim  or  subsequently;  they  may  even  be  located  after  the  lode 
claim  is  patented.  While  no  $500  expenditure  is  required  upon 
a  millsite  claim,  those  attached  to  a  lode  claim  require  to  be 
used  for  some  mining  and  milling  purpose  in  connection  with 
the  lode  claim,  and  those  unattached  to  the  lode  claim,  to  have 
an  actual  reduction  works  upon  them. 


CHAPTER  XX 

Adverse  Claim 

R.  S.,  Sec.  2325.  *  *  *  If  no  adverse  claim  shall  have 
been  filed  with  the  register  and  the  receiver  of  the  proper 
land  office  at  the  expiration  of  the  sixty  days  of  publica 
tion,  it  shall  be  assumed  that  the  applicant  is  entitled  to 
a  patent,  upon  the  payment  to  the  proper  officer  of  five 
dollars  per  acre,  and  that  no  adverse  claim  exists;  and 
thereafter  no  objection  from  third  parties  to  the  issuance 
of  a  patent  shall  be  heard,  except  it  be  shown  that  the 
applicant  has  failed  to  comply  with  the  terms  of  this 
chapter. 

R.  S.,  Sec.  2326.  When  an  adverse  claim  is  filed  during 
the  period  of  publication,  it  shall  be  upon  the  oath  of 
the  person  or  persons  making  the  same,  and  shall  show 
the  nature,  boundaries,  and  extent  of  such  adverse  claim; 
and  all  proceedings,  except  the  publication  of  notice  and 
making  and  filing  of  the  affidavit  thereof,  shall  be  stayed 
until  the  controversy  shall  have  been  settled  or  decided 
by  a  court  of  competent  jurisdiction,  or  the  adverse  claim 
waived.  It  shall  be  the  duty  of  the  adverse  claimant, 
within  thirty  days  after  filing  his  claim,  to  commence 
proceedings  in  a  court  of  competent  "jurisdiction,  to  de 
termine  the  question  of  the  right  of  possession,  and 
prosecute  the  same  with  reasonable  diligence  to  final 
judgment;  and  a  failure  so  to  do  shall  be  a  waiver  of  his 
adverse  claim.  After  such  judgment  shall  have  been 
rendered,  the  party  entitled  to  the  possession  of  the 
claim,  or  any  portion  thereof,  may,  without  giving  fur 
ther  notice,  file  a  certified  ropy  of  the  judgment-roll  with 
the  register  of  the  land  office,  together  with  the  certifi 
cate  of  the  surveyor-general  that  the  requisite  amount  of 
labor  has  been  expended  or  improvements  made  there 
on,  and  the  description  reauired  in  other  cases,  and  shall 
pay  to  the  receiver  five  dollars  per  acre  for  his  claim, 
together  with  the  proper  fees,  whereupon  the  whole  pro 
ceedings  and  the  judgment-roll  shall  be  certified  by  the 
register  to  the  Commissioner  of  the  General  Land  Office, 
and  a  patent  shall  issue  thereon  for  the  claim,  or  such 
126 


ADVERSE  CLAIMS  127 

portion  thereof  as  the  applicant  shall  appear,  from  the 
decision  of  the  court,  to  rightly  possess.  If  it  appears 
from  the  decision  of  the  court  that  several  parties  are 
entitled  to  separate  and  different  portions  of  the  claim, 
each  party  may  pay  for  his  portion  of  the  claim  with  the 
proper  fees,  and  file  the  certificate  and  description  by 
the  surveyor-general,  whereupon  the  register  shall  cer 
tify  the  proceedings  and  judgment-roll  to  the  Commis 
sioner  of  the  General  Land  Office,  as  in  the  preceding 
case,  and  patents  shall  issue  to  the  several  parties  accord 
ing  to  their  respective  rights.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  alienation  of  a  title 
conveyed  by  a  patent  for  a  mining  claim  to  any  person 
whatever. 

An  adverse  claim  is  the  assertion  of  rights  in  all  or  any  part 
of  the  ground  embraced  in  an  application  for  patent,  under 
another  and  hostile  location  to  the  one  entered  for  patent.  It  is 
by  filing  an  adverse  claim  against  the  application  for  patent, 
that  the  miner  retains  his  unpatented  ground  that  has  been 
'jumped'  or  overlapped.  The  adverse  as  prepared  must  fully  set 
forth  the  nature  and  extent  of  the  interference  and  conflict. 
It  should  contain  all  the  facts  by  which  the  adversary  claims 
the  right  to  adverse.  Accompanying  must  be  a  plat  showing 
the  claims  and  conflict,  but  such  survey  may  be  made  by  a 
surveyor  other  than  a  deputy  mineral  surveyor.  If  it  is  im 
possible  to  survey  the  conflict  through  the  claims  being  snow 
bound,  the  same  should  be  stated.  If  both  the  patent  application 
and  adverse  are  by  legal  subdivisions,  no  survey  or  plat  is  re 
quired.  The  adverse  will  be  made  on  the  oath  of  the  adverse 
claimant,  or  his  duly  authorized  agent  or  attorney  in  fact 
cognizant  of  the  facts.  The  adverse  must  be  filed  in  the  local 
land  office  where  the  patent  application  is  filed,  during  the  sixty 
days  of  publication  of  notice  of  application  for  patent,  not  in 
cluding  the  first  day  of  publication.  No  adverse  claim  can  be 
received  under  any  conditions  after  this  period.  If  re-publica 
tion  is  ordered,  the  adverse  must  be  re-filed.  An  adverse  can 
not  be  enlarged  through  amendment  or  a  new  adverse,  after  the 
publication  period.  If  the  local  land  office  rejects  the  adverse 
as  being  insufficient,  the  adversary  may  appeal  to  the  Com 
missioner  of  the  General  Land  Office  at  Washington,  but  unless 


128  MINING  LAW 

he  brings  suit  in  the  courts  within  thirty  days,  just  as  if  his 
adverse  had  been  accepted  at  the  local  land  office,  the  allowance 
of  his  adverse  at  Washington  will  not  avail  him.  Even  though 
the  land  office  rejects  an  adverse  claim,  if  the  adverse  claim  is 
carried  through  regularly  in  every  other  way,  the  land  office 
will  respect  the  court  decision,  for  should  the  court  decision  be 
favorable  to  the  adverse  claimant,  it  would  tend  to  show  that 
the  land  office  was  in  error  in  not  accepting  the  adverse. 

The  Government  wisely  avoids  trying  to  determine  the  pos 
sessory  rights  ot  rival  claimants  by  requiring  that  the  adverse 
claimant  bring  suit  within  thirty  days  from  date  of  filing  ad 
verse,  in  a  court  of  competent  jurisdiction  to  determine  the 
question  of  right  of  possession.  If  suit  is  not  commenced  with 
in  this  time  and  prosecuted  with  reasonable  diligence,  the 
right  of  adverse  is  lost.  An  Act  was  passed  by  Congress  in 
1910  authorizing  in  Alaska,  the  filing  of  adverse  claims  at  any 
time  during  the  sixty  days  of  publication  or  within  eight  months 
thereafter,  and  adverse  suits  to  be  instituted  within  sixty  days 
after  filing  the  adverse  claims  in  the  local  land  office.  This  Act 
was  necessitated  by  the  fact  that  travel  and  communication  are 
almost  suspended  in  parts  of  Alaska  during  the  winter  season. 

The  filing  of  adverse  claims  against  a  patent  does  not  stay 
the  patent  proceeding  until  after  the  completion  of  the  publica 
tion  and  posting  of  notices  and  plat  and  the  filing  of  the  neces 
sary  proof  thereof,  when  the  matter  must  be  rested,  until  the 
land  office  is  able  to  determine  from  the  outcome  in  court  of 
the  adverse  cases,  to  what  land  entry  should  be  allowed.  After 
filing  the  result  of  the  court  proceedings,  whether  non-suit, 
abandonment,  dismissal,  or  judgment,  the  patent  application  as 
modified  by  the  results  of  the  adverse  suit,  will  proceed  in  the 
regular  way.  Whatever  ground  is  awarded  the  adverse  claim 
ant  is,  of  course,  removed  from  the  patent  application  before 
final  entry.  The  adverse  claimant  may  also  file  the  necessary 
patent  papers  and  receive  patent  for  any  area  awarded  him, 
whether  part  or  all,  if  he  has  done  the  requisite  $500  worth  of 
work.  Should  the  adverse  claimant  wish  to  patent  all  of  the 
claim  of  which  the  awarded  area  may  be  a  part,  he  will  have 
to  begin  new  and  regular  patent  proceedings,  including  survey. 


ADVERSE  CLAIMS  129 

If  the  judgment  of  the  court  is  that  neither  party  is  entitled 
to  the  ground,  no  further  proceedings  can  be  made  on  the  patent 
application. 

An  adverse  claim  may  be  filed,  against  any  kind  of  a  mineral 
entry  by  another  mineral  location,  whether  of  the  same  class 
or  not;  though  where  the  classes  of  locations  are  at  variance, 
the  .adverse  may  take  on  the  nature  of  a  protest,  as  in  the 
case  of  a  lode  claim  adversing  a  millsite  and  questioning  its 
non-mineral  character.  Claimants  under  filings  or  entries  other 
than  mineral,  instead  of  adversing  mineral  applications,  protest 
against  them.  A  co-owner  who  has  been  excluded  from  the 
application  for  patent  by  the  co-owners,  may  adverse  in  his 
own  behalf,  but  his  adverse  is  more  in  the  nature  of  a  protest 
(see  'Protest'). 

The  ground  which  is  the  subject  of  an  adverse  may  be  ex 
cluded  from  the  patent  application,  that  it  may  at  once  proceed 
to  final  entry  and  patent,  without  any  rights  to  the  ground 
in  conflict  being  waived.  An  agreement  made  by  a  patent  appli 
cant  to  deed  certain  portions  of  the  claim  or  rights,  after  patent 
has  been  obtained,  to  those  threatening  to  adverse  in  considera 
tion  of  no  adverse  being  made,  is  sound  and  valid. 

A  lode  must  adverse  a  lode,  a  placer  must  adverse  a  placer, 
and  a  millsite  must  adverse  a  millsite,  or  lose  all  rights  to 
the  ground  in  conflict.  A  placer  must  adverse  a  lode  or  lose 
the  conflict  area.  A  lode  must  adverse  a  placer  or  lose  all 
except  25  feet  on  each  side  of  the  known  lode,  it  being  protected 
to  that  extent  by  the  Statute  on  known  lodes  in  placers.  Known 
lodes  need  not  adverse  placers,  but  it  is  best  to  do  so.  Tunnel 
sites  need  not  adverse  on  blind  lodes  cut,  except  where  it  is 
desired  to  patent  surface  ground  on  such  blind  lodes.  Lodes 
or  placers  should  adverse  a  millsite,  but  may  also,  and  more 
properly,  protest.  A  millsite  should  adverse  a  lode  or  placer, 
though  it  may  also,  and  more  properly,  protest.  A  co-owner  may 
adverse,  but  more  properly  protests. 


CHAPTER  XXI 
Protest 

R.  S.,  Sec.  2325.  *  *  *  And  thereafter  [after  publica 
tion  period]  no  objection  from  third  parties  to  the  issu 
ance  of  a  patent  shall  be  heard,  except  it  be  shown  that 
the  applicant  has  failed  to  comply  with  the  terms  of 
this  chapter  [the  mining  Statutes  and  presuming  the 
regulations  of  the  Land  Department]. 

"At  any  time  prior  to  the  issuance  of  patent,  protest  may  be 
filed  against  the  patenting  of  the  claim  as  applied  for,  upon 
any  ground  tending  to  show  that  the  applicant  has  failed  to 
comply  with  the  law,  in  any  matter  essential  to  a  valid  entry 
under  the  patent  proceedings.  Such  protest  cannot,  however, 
be  made  the  means  of  preserving  a  surface  conflict  lost  by 
failure  to  adverse,  or  lost  by  the  judgment  of  the  court  in  an 
adverse  suit.  One  holding  a  present  joint  interest  in  a  mineral 
location  included  in  an  application  for  patent,  who  is  excluded 
from  the  application,  so  that  his  interest  would  not  be  pro 
tected  by  the  issue  of  patent  thereon,  may  protest  against  the 
issuance  of  a  patent  as  applied  for,  setting  forth  in  such  protest 
the  nature  and  extent  of  his  interest  in  such  location,  and 
such  a  protestant  will  be  deemed  a  party  in  interest  entitled 
to  appeal.  This  results  from  the  holding  that  a  co-owner  ex 
cluded  from  an  application  for  patent,  does  not  have  an  'adverse' 
claim  within  the  meaning  of  sections  2325  and  2326  of  the  Re 
vised  Statutes.  (See  Turner  v.  Sawyer,  150  U.  S.,  578-586.)"— 
(Land  Office  regulation  53.) 

A  protest  differs  from  an  adverse  in  that  while  an  adverse 
is  a  question  of  the  possessory  rights  of  rival  claimants  and  a 
subject  of  interest  to  the  two  contending  parties  only,  a  protest 
questions  the  applicant's  right  to  receive  title  through  not  having 
complied  with  the  Statutes  or  regulations  and  in  its  being  against 

130 


PROTEST  131 

the  public  policy  and  intention.  A  protest  is  prepared  as  the 
affidavit  of  the  protestant,  setting  forth  the  reasons  why  patent 
should  not  be  allowed.  It  is  filed  in  the  local  land  office  at 
any  time  after  publication  of  notice  of  application  for  patent 
begins,  and  up  to  the  date  of  issuing  patent  at  Washington.  A 
protest  filed  after  the  patent  document  has  actually  issued, 
though  it  has  not  been  delivered  to  the  applicant,  cannot  be 
acted  upon.  The  only  recourse  is  to  have  the  Government  begin 
suit  to  set  aside  patent  on  grounds  of  fraud,  if  the  facts  will 
warrant  such  a  suit.  The  result  of  a  protest,  if  the  patent 
applicant  wishes  to  deny  the  charges  and  cannot  do  so  other 
wise,  is  a  hearing  before  the  register  and  receiver  of  the  local 
land  office,  in  which  the  protestant  and  the  patent  applicant 
will  be  heard  and  a  decision  will  be  made.  Protests  may  be 
made  by  anyone,  whether  claiming  to  hold  rights  in  the  ground 
upon  which  patent  is  being  asked,  or  not.  Parties  claiming  an 
interest  in  the  ground,  adversely  or  otherwise,  have  the  right 
to  appeal  from  the  decision  of  the  local  land  office  to  the  Com 
missioner  of  the  General  Land  Office,  and  from  his  decision  to 
the  Secretary  of  the  Interior.  Protestants  without  interest  in 
the  property  have  no  such  right  of  appeal. 

Protests  are  of  three  classes:  (1)  Those  claiming  that  the 
mineral  laws  and  regulations  have  not  been  fully  complied  with 
to  entitle  applicant  to  patent;  (2)  those  claiming  that  the  land 
is  not  such  as  to  be  patented  as  mineral  entries  or  the  class 
of  mineral  entry  made;  (3)  those  made  by  a  co-owner  who  has 
been  excluded  from  the  patent  application  by  the  other  co-owners. 

A  protest  of  the  first  class  does  not  deny  that  the  land  is 
subject  to  the  kind  of  entry  made,  but  asserts  that  the  patent 
applicant,  not  having  complied  with  some  law  or  regulation  rela 
tive  to  patenting,  should  have  his  application  rejected.  If  the 
protest  is  sustained,  the  patent  proceedings  will  be  cancelled  in 
whole  or  part,  but  the  applicant's  possessory  right  is  not  im 
paired,  neither  is  he  hindered  from  beginning  his  application 
anew  or  continuing  it  to  patent,  by  complying  with  the  law. 
Such  a  protest  may  be,  that  the  applicant  is  not  a  citizen  of 
the  United  States,  that  the  notice  of  application  for  patent  was 
not  properly  posted,  that  the  required  amount  of  work  has  not 


132  MINING  LAW 

been  done,  that  there  is  no  mineral  discovery,  that  the  patent 
survey  did  not  keep  within  the  location,  or  any  similar  objection 
may  be  urged.  Theoretically,  any  departure  from  the  Statutes 
or  the  regulations  of  the  General  Land  Office  might  constitute 
sufficient  basis  for  a  protest,  but  some  of  the  Land  Office  rules 
must  be  considered  as  directory  rather  than  mandatory,  and 
consequently  every  trifling  defect  is  not  a  sufficient  basis  for 
a  protest.  It  must  be  a  thing  of  some  weight. 

Protests  of  the  second  class  assert  that  the  land  is  more  val 
uable  for  some  other  purpose,  or  is  not  essentially  of  the  class 
to  be  secured  by  such  entry.  These  occur  when  the  mineral  char 
acter  of  a  lode  claim  or  the  non-mineral  character  of  a  millsite 
is  questioned.  They  are  a  frequent  occurrence  between  agricul 
tural  entrymen  and  mineral  applicants  or  locators.  The  decision 
in  a  hearing  on  one  of  these  protests  usually  operates  to  cancel 
the  possessory  right  or  entry  of  the  losing  claimant. 

Protests  of  the  third  class,  or  those  made  by  a  co-owner 
excluded  from  the  application  for  patent  by  the  other  co-owners, 
if  successfully  sustained,  will  cause  the  protestant  to  be  in 
cluded  in  the  application  for  patent  to  the  extent  of  his  portion. 
If  patent  is  already  issued,  the  excluded  co-owner  should  begin 
suit  in  law  to  have  his  portion  or  right  in  the  patent  transferred 
to  him.  An  excluded  co-owner  may  file  an  adverse  in  the  usual 
way,  which  will  stay  patent  proceedings  until  his  rights  can 
be  litigated  in  court.  The  Land  Office  regulation,  quoted  at 
the  beginning  of  the  chapter,  assumes  that  such  a  co-owner  is 
a  protestant  rather  than  an  adverse  claimant.  This  appears 
to  be  the  proper  view,  since  the  Statute  referring  to  adverse 
claims  is  designed  to  cover  questions  of  conflicting  and  hostile 
locations,  not  difficulties  between  co-owners.  Furthermore,  the 
co-owner  technically  protests  that  the  patent  applicant  has  not 
the  full  possessory  right  necessary  to  entitle  him  to  patent  as 
contemplated  by  law.  However,  the  better  course  is  for  the 
excluded  co-owner  to  both  adverse  and  protest. 

A  protest  cannot  be  made  on  any  grounds  that  were  properly 
the  subject  of  an  adverse.  No  rights  that  could  have  been  re 
tained  by  an  adverse  can  be  directly  saved  by  a  protest.  How 
ever,  when  a  claimant  has  lost  his  rights,  through  failing  to 


PROTEST  133 

adverse  at  the  proper  time,  if  he  can  unearth  some  point  on 
which  to  protest  and  can  successfully  sustain  the  protest,  he 
will  have  a  chance  to  adverse  and  preserve  his  rights  when 
the  patent  applicant  makes  application  anew  or  on  re-publication. 
This  is  the  most  important  point  for  the  miner  to  bear  in  mind. 
A  relocator  of  a  claim,  basing  his  right  on  failure  to  do  the 
annual  labor,  after  the  publication  period,  as  often  happens 
where  the  applicant  unnecessarily  delays  making  final  entry, 
protests  against  the  final  entry  and  patent,  since  he  cannot 
adverse. 


CHAPTER  XXII 

Patent  Work 

R.  S.,  Sec.  2325.  *  *  *  The  claimant,  at  the  time  of 
filing  this  application,  or  at  any  time  thereafter,  within 
the  sixty  days  of  publication  [of  notice  of  application 
for  patent],  shall  file  with  the  register  a  certificate  of 
the  United  States  surveyor-general  that  $500  worth  of 
labor  has  been  expended  or  improvements  made,  upon 
the  claim  by  himself  or  grantors  *  *  *. 

"If  the  application  embraces  several  contiguous  locations  held 
in  common,  that  an  amount  equal  to  $500  for  each  location,  has 
been  so  expended  upon  and  for  the  benefit  of  the  entire  group. 
The  expenditures  required  may  be  made  from  the  surface,  or 
in  running  a  tunnel,  drifts,  or  cross-cuts  for  the  development 
of  the  claim.  Improvements  of  any  other  character,  such  as 
buildings,  machinery,  or  roadways,  must  be  excluded  from  the 
estimate,  unless  it  is  shown  clearly  that  they  are  associated 
with  actual  excavations,  such  as  cuts,  tunnels,  shafts,  etc.,  are 
essential  to  the  practical  development  of,  and  actually  facilitate 
the  extraction  of,  mineral  from  the  claim.  Improvements  made 
by  a  former  locator  who  has  abandoned  his  claim  cannot  be- 
included  in  the  estimate,  but  should  be  described  and  located 
in  the  notes  and  plat.  If  the  value  of  the  labor  and  improve 
ments  upon  a  mineral  claim  is  less  than  $500  at  the  time  of 
survey,  the  mineral  surveyor  may  file  with  the  surveyor-general 
supplemental  proof  showing  $500  expenditure  made  prior  to 
the  expiration  of  the  period  of  publication."  (Land  Office  regula 
tions  48,  151,  158,  and  160.) 

The  patent  work,  as  has  been  stated  before,  may  be  performed 
any  time  prior  to  expiration  of  publication  period,  and  may 
be  measured  up  and  reported  to  the  surveyor-general  and  land 
office  after  that  period;  usually  it  is  work  that  was  intermit- 
134 


PATENT  WORK  135 

tently  performed  as  the  annual  labor.  It  has  been  generally 
stated  that  annual  labor  and  patent  work  are  the  same,  but 
there  is  liable  to  be  considerable  difference  between  the  two. 
What  will  answer  as  patent  work  is  satisfactory  for  annual 
labor,  but  not  necessarily  the  reverse.  As  the  Land  Office  does 
not  determine  possessory  rights,  it  has  nothing  to  do  with 
annual  labor,  and  consequently,  what  is  annual  labor  must  be 
obtained  from  the  decisions  of  the  courts,  when  such  work  has 
been  questioned.  What  will  answer  as  patent  work  must  be 
judged  from  the  regulations  and  decisions  of  the  Land  Office. 
While  the  Statutes  undoubtedly  contemplated  that  annual  labor 
and  patent  work  should  be  the  same,  there  is  an  essential  fair 
ness  in  their  differences.  The  miner  and  prospector,  often  a 
man  of  little  means,  who  spends  his  time  and  money  building 
a  cabin,  trails,  etc.,  and  making  other  preparatory  steps  which 
indirectly  assist  him  in  developing  the  mineral  in  his  claim, 
is  entitled  to  apply  the  same  as  annual  labor,  and  the  courts 
allow  him  to  do  so  in  the  presence  of  bona  fide  intention  and 
good  faith.  Nevertheless,  the  Land  Office  is  right  in  requiring, 
when  patent  is  asked  for  a  claim,  that  the  $500  expenditure 
shall  directly,  and  not  indirectly,  tend  to  develop  the  mineral 
contents  of  the  ground  and  facilitate  its  extraction  therefrom. 
It  should  be  work  tending  to  open  up  the  ground  and  leave  some 
trace  of  itself,  such  as  cuts,  tunnels,  shafts,  or  quarries;  in  short, 
actual  development  operations.  About  the  only  things  that  will 
be  allowed  in  the  line  of  buildings  are  shaft-houses  and  head- 
frames,  since  they  are  directly  required  in  extracting  mineral. 
Blacksmith-shops  are  generally  rejected,  and  other  constructions 
still  more  certainly.  Roads  and  trails  upon  the  actual  ground 
of  the  claims  have  been  accepted  where  associated  with  actual 
excavations,  but  there  is  a  probability  of  their  being  barred  in 
the  future.  Expenditures  for  reduction  works,  watchmen,  pump 
ing  water,  surveying  where  not  a  part  of  an  improvement,  etc., 
are  not  applicable.  Caved  works  may  be  applied,  if  clear  and 
convincing  proof  of  their  existence  can  be  established. 

Where  and  how  the  work  must  be  done  is  answerable  in  the 
same  way  as  in  the  case  of  annual  labor.  It  must  tend  to 
develop  the  claims.  Whether  it  does  or  not  is  a  question  of 


136  MINING  LAW 

fact.  The  work  may  be  a  common  improvement  for  any  numbei 
of  contiguous  claims,  and  also  for  claims  that  are  not  contiguous 
if  the  common  improvement  will  develop  these  claims  and  has 
right-of-way.  A  single  exception  is  the  case  of  oil  claims,  where, 
under  the  Statute,  an  improvement  upon  one  claim  cannot  answer 
as  annual  labor  on  more  than  five  contiguous  claims  having  a 
common  ownership.  There  is  nothing  to  say  how  close  a  claim 
must  be  situated  to  a  shaft  or  tunnel  to  entitle  it  to  go  to 
patent  on  that  improvement.  Whether  the  shaft  or  tunnel  could 
be  considered  a  development  of  that  claim,  would  be  a  question 
in  which  the  ideas  of  practical  miners  and  engineers  would  pre 
vail.  A  tunnel  would  not  be  an  improvement  of  a  claim  located 
farther  down  the  hill  and  below  the  tunnel  portal.  A  tunnel 
is  not  an  improvement  of  a  claim  which  it  could  not  reach 
through  its  bore  or  in  case  a  drift  from  it  in  the  direction  of 
the  claim  would  come  to  daylight  before  reaching  the  claim. 

_I£.  a  claim  of  a  group  has  $500  worth  of  work  done  upon  it 
in  what  is  to  be  a  common  improvement  for  the  group,  it  may 
go  to  patent;  the  fact  that  the  $500  has  been  applied  as  annual 
labor  to  benefit  all  the  claims  is  of  no  weight.  After  performing 
another  $500  worth  of  work  in  the  common  improvement,  the 
next  claim  can  be  patented,  and  so  on.  Where  a  claim  is  added 
to  an  existing  and  patented  group  by  location  or  purchase,  the 
newly  added  claim  may  be  patented  by  doing  $500  worth  of 
work  for  it  in  the  common  improvement,  if  such  improvement 
can  be  considered  a  development  of  the  new  claim.  This  is 
an  important  point,  for  it  was  formerly  held  that  if  it  was 
desired  to  patent,  on  a  common  improvement,  a  claim  added 
by  the  location,  it  would  be  necessary  to  perform  in  the  common 
improvement,  after  adding  the  new  claim,  such  an  amount  of 
work  as,  divided  by  the  total  number  of  claims  purported  to 
be  developed  by  the  common  improvement,  would  give  the  $500 
for  the  new  claim. 

The  valuation  of  the  work,  like  with  annual  labor,  is  what 
it  is  reasonably  worth.  What  it  actually  cost,  whether  high 
or  low,  has  little  weight.  The  work  must  be  performed  by 
the  applicant  or  his  grantors.  Work  existing  upon  the  claims 
when  located  cannot  be  entered,  except  by  fraud;  for  the  appli- 


PATENT  WORK  137 

cant  must  make  oath  that  work  entered  was  performed  by 
himself  or  grantors.  Where  the  claimant  relocates  his  claim 
to  prevent  others  from  locating  it  through  his  failure  to  do 
the  annual  labor,  it  is  believed,  though  there  is  no  decision 
or  ruling  on  that  point,  that  he  has  lost  all  prior  work  for  patent 
purpose.  It  may  be  said  in  favor  of  the  claimant,  when  making 
his  patent  application,  that  he  has  actually  performed  the  work 
he  reports,  and  if  there  has  been  no  intervening  location,  and 
his  relocation  being  more  a  nominal  location,  his  rights  date 
back  to  the  first  location  on  the  principle  of  resuming  work. 
Against  him  is  the  $500  expenditure  implying  that  the  work 
must  be  done  on  the  location  entered  for  patent,  and  not  under 
a  former  location;  also,  that  he  should  be  penalized  for  trying 
to  avoid  annual  labor  by  losing  for  patent  purposes  the  work 
which  he  relocated.  If  the  forfeiting  owner  has  the  right  to 
relocate  his  own  ground  just  as  a  stranger  would  have,  as 
the  court  held  in  one  case  reported,  then  he  should  have  no 
patent  rights  to  his  old  work,  just  as  a  stranger  would  not. 
At  any  rate,  the  claimant  should  resume  work  on  his  forfeitable 
location  instead  of  relocating;  he  should  make  amended  loca 
tions  instead  of  relocations,  whenever  defects  or  changes  of 
location  are  to  be  adjusted. 


CHAPTER  XXIII 

Apex  or  Extralateral  Right 

R.  S.,  Sec.  2322.  The  locators  of  all  mining  locations 
*  *  *  shall  have  the  exclusive  right  of  possession  and 
enjoyment  of  all  the  surface  included  within  the  lines 
of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which 
lies  inside  of  such  surface  lines  extended  downward 
vertically,  although  such  veins,  lodes,  or  ledges  may  so 
far  depart  from  a  perpendicular  in  their  course  down 
ward  as  to  extend  outside  the  vertical  side  lines  of 
such  surface  locations.  But  their  right  of  possession 
to  such  outside  parts  of  such  veins  or  ledges  shall  be 
confined  to  such  portions  thereof  as  lie  between  ver 
tical  planes  drawn  downward  as  above  described, 
through  the  end  lines  of  their  locations,  so  continued  in 
their  own  direction  that  such  planes  will  intersect  such 
exterior  parts  of  such  veins  or  ledges.  And  nothing  in 
this  section  shall  authorize  the  locator  or  possessor  of 
a  vein  or  lode  which  extends  in  its  downward  course 
beyond  the  vertical  lines  of  his  claim  to  enter  upon  the 
surface  of  a  claim  owned  or  possessed  by  another. 

The  above  is  the  Statute  upon  which  the  law  of  apex,  extra- 
lateral  or  subsurface  right  is  based.  There  is  no  other  Statute 
and  no  other  law  upon  the  subject,  except  the  decisions  rendered 
in  apex  suits. 

The  apex  of  a  vein  may  be  defined  as  the  top;  the  upper  end, 
edge,  or  'beginning;  the  outcrop  of  the  vein  on  or  nearest  the 
surface.  It  is  not  a  point,  as  a  strict  interpretation  of  the 
word  apex  might  indicate,  but  a  line,  which,  if  it  does  not 
outcrop  on  the  surface,  would  do  so  if  the  overlying  earth  and 
rock  were  sufficiently  removed — that  is,  a  blind  vein  has  a 
legal  apex.  The  apex  is  the  top  or  outcrop  of  the  vein  along 
the  strike,  and  more  or  less  at  right  angles  to  the  dip;  it  is 
not  the  outcrop  on  the  dip.  It  is  the  exposed  or  uppermost  edge 
of  the  strike,  not  that  of  the  dip. 
138 


EXTRALATERAL  RIGHTS  139 

The  apex  law  or  right  to  follow  the  vein  indefinitely  on  its 
dip,  was  originated  and  put  into  practice  by  the  miner,  who 
believed  that  the  discoverer  of  a  vein  on  the  surface,  was 
entitled  to  all  of  the  vein  in  depth  as  his  reward;  also,  that 
if  the  right  to  follow  the  vein  in  depth  was  not  granted  him, 
he  would  of  necessity  have  to  appropriate  a  large  amount  of 
ground  on  each  side  of  the  outcrop  or  apex  of  the  vein,  in 
order  to  insure  his  possession  of  the  vein  in  depth,  which  would 
work  a  hardship  on  him  in  trying  to  hold  the  ground  and  on 
others  in  preventing  them  from  prospecting  this  additional  area. 
At  the  time  the  law  was  originated,  the  'true-fissure'  type  of 
quartz  vein  was  the  prominent  and  ruling  type  of  orebody 
known.  Such  a  vein  occupies  a  fairly  regular  fissure  in  the 
earth,  and  is  comparatively  clear  cut  and  well  defined.  It 
may  be  likened  to  a  leaf  within  a  book.  If  all  veins  or  lodes 
were  of  this  type,  the  wisdom  of  the  apex  law  would  be  unques 
tioned.  As  mining  progressed,  it  was  found  that  ore  deposits 
departed  more  and  more  from  the  theoretical  idea  of  a  vein 
or  lode  upon  which  the  law  was  founded,  especially  in  the 
case  of  base-metal  veins  and  lodes,  and  impregnation  and  re 
placement  deposits.  The  questions  that  arose  regarding  the 
apex  law  were  of  two  classes.  The  first  question  was,  who  had 
the  apex  according  to  the  geologic  facts?  The  Statutes,  it  was 
soon  evident,  had  made  no  provision  for  the  varying  conditions 
under  which  apexes  and  claim-lines  were  found.  Having  de 
termined  the  geologic  facts  as  to  who  had  the  apex,  what  deci 
sion  should  be  handed  down,  became  the  second  question.  The 
second  question,  one  of  law,  has  been  answered  by  the  various 
court  decisions  covering  most  of  the  forms  of  apex  and  claim- 
line  occurrence,  so  that  if  the  facts  of  the  apex  are  established, 
the  law  can  be  applied.  The  first  question,  what  are  the  con 
ditions  under  which  the  vein  or  lode  occurs  and  who  has  the 
apex,  the  .question  of  fact,  can  only  be  determined  by  geologic 
investigation  and  engineering  work,  and  is  the  more  difficult 
point  in  all  apex  suits. 

Both  practical  and  technical  men  are  divided  in  their  opinion 
upon  the  apex  law.  Given  an  entirely  new  country,  the  majority, 
biased  by  the  great  amount  of  litigation  caused  by  the  apex 


140 


MINING  LAW 


law  in  the  past,  would  undoubtedly  decide  against  it;  but 
under  our  present  conditions,  it  would  appear  that  the  ma 
jority  are  in  favor  of  its  continuance,  since  to  disallow  apex 
rights  to  all  future  locations  would  cause  endless  confusion  and 
dissatisfaction.  Should  the  apex  law  be  repealed,  those  claims 
located  prior  to  such  repeal  could  not  be  divested  of  their  apex 
rights.  In  1905  the  Philippine  Mining  Laws  were  amended  by 
the  Congress  of  the  United  States  to  prohibit  apex  or  extra- 
lateral  rights. 

The  substance  of  the  apex  law  is  that  if  the  end-lines  are 
parallel  to  each  other,  and  straight  and  unbroken,  the  vein 
may  be  followed  indefinitely  on  its  dip  outside  of  the  side  lines 
of  the  claim;  but  only  such  part  of  the  vein  may  be  followed 
as  lies  within  the  end  lines  and  the  prolongations  of  the  end 
lines  on  the  surface,  when  such  end  lines  and  their  prolonga 
tions  are  projected  vertically  downward  toward  the  centre  of 
the  earth.  The  parallelism  of  end  lines  is  not  required  to 
secure  extralateral  rights  on  patents  issued  before  1872,  but 
unless  the  end  lines  are  parallel  on  locations  and  patents  since 
the  present  Act  of  1872,  there  are  no  extralateral  rights.  In  the 
cases  to  be  illustrated,  it  will  be  presumed  that  the  end  lines 
are  parallel  in  each  instance. 


Fig.  19 


Fig.  20 


Fig.  19  and  20  represent  the  apex  rights  in  a  claim  where 
the  vein  crosses  both  end  lines  as  the  law  contemplates.  It 
is  the  condition  for  which  the  apex  law  was  framed,  the  other 
rules  of  the  apex  law  having  been  made  by  the  decisions  of 


EXTRALATERAL  RIGHTS 


141 


the  courts.  Where  the  vein  crosses  both  side  lines,  the  vein 
cannot  be  followed  beyond  the  side  lines  in  a  way  consistent 
with  the  intention  of  the  apex  law,  since  that  would  generally 
be  a  case  of  following  the  vein  on  its  strike,  instead  of  its  dip. 
For  this  reason,  the  end  lines  become  the  side  lines,  and  the 
side  lines  become  the  end  lines.  If  the  intended  side  lines 
are  parallel,  extralateral  rights  occur  as  in  Fig.  21  and  22; 


Fig.  21 


Fig.  22 


hence  the  advisability  of  always  making  the  side  lines  parallel. 
When  the  vein  crosses  one  side  line  and  one  end  line,  the 
end  lines  still  remain  the  end  lines  for  extralateral  right  pur 
poses.  The  right  to  follow  the  vein  beyond  the  side  lines  is 
confined  to  the  part  of  the  vein  which  apexes  within  the  claim, 
and  ends  where  the  vein  crosses  the  side  line  as  shown  in  Fig. 
23  and  24.  In  case  a  vein  crosses  an  end  line  and  terminates 


Fig  23 


within  the  claim,  the  rights  are  as  in  Fig.  25.  An  application 
of  this  principle  would  lead,  in  the  case  of  a  vein  crossing  a 
side  line  and  terminating  within  the  claim,  to  the  rights  shown 
in  Fig.  26;  and  in  the  case  of  a  vein  or  orebody  having  both 


142 


MINING  LAW 


of    its    terminations    within    the    claim,    to    those    rights    shown 
in  Fig.  27  and  28. 


Vein 


Vein 


Fig.   25 


Fig.  26 


Fig.  27 


Fig.  28 


In  Fig.  29  the  question  is,  who  would  have  the  dip  rights 
not  obtained  by  A  and  B — the  ground  lying  between?  It  would 
probably  go  to  the  owner  of  C,  who,  although  not  having  any  of 
the  true  apex  of  the  vein,  would  have  a  theoretical  apex  be 
tween  A  and  B  along  D  E  F,  where  the  apex  rights  of  A  and  B 
terminate  by  reason  of  the  direction  of  their  end  lines. 


Fig.  29 

In  the  previous  cases  it  is  the  'principal',  the  'discovery', 
or  'original'  vein  that  is  discussed.  The  question  then  comes, 
what  are  the  rights  on  another  or  secondary  vein  apexing  in 
the  same  claim?  Shall  its  rights  be  decided  by  its  own  facts, 
or  shall  they  be  contingent  upon  the  facts  and  rights  of  the 
discovery  or  original  vein?  It  appears  that  they  will  be  con 
tingent  upon  the  discovery  or  original  vein,  in  so  far  as  such 
discovery  vein  determines  which  shall  be  the  end  lines  and 
which  the  side  lines  for  apex  purposes;  but  as  a  pronounced 


EXTRALATERAL  RIGHTS  143 

following  of  the  secondary  vein  on  its  dip  would  be  obnoxious, 
except  conformable  to  the  main  workings,  there  would  be  no 
apex  rights  on  a  secondary  vein  that  did  not  dip  in  harmony 
with  its  discovery  or  principal  vein. 

Where  a  broad  vein  apexes  in  breadth,  partly  upon  each  of 
two  adjoining  claims,  that  is,  when  the  joint  boundary  line 
of  the  claims  splits  the  apex,  the  extralateral  rights  go  to  the 
senior  locator.  The  locator  has  the  right  to  follow  the  vein 
to  which  he  has  extralateral  rights,  into  the  ground  of  all  min 
eral  locations  and  entries,  whether  patented  or  unpatented, 
whether  of  an  earlier  or  a  later  location  than  his  own;  but 
he  must  follow  the  vein  from  his  own  ground.  Tie .  Statute 
quoted  before  grants  him  no  right  to  sink,  tunnel,  or  drift 
through  his  neighbor's  ground,  to  locate  or  cut  his  own  vein, 
but  it  would  appear  that  this  right  can  be  acquired  in  most 
States  under  condemnation  or  eminent  domain  •  proceedings. 
When  land  has  been  entered  or  patented  as  agricultural  or 
other  nonmineral  ground,  all  mineral  eventually  found  within 
the  boundaries  extended  vertically  downward  belongs  to  the 
agricultural  owner,  but  there  are  no  apex  rights,  and  the  owner 
cannot  follow  any  vein  outside  his  vertical  boundaries,  for  the 
Statutes  give  that  right  only  to  "the  locators  of  mining  loca 
tions"  on  such  locations. 

It  is  presumed  that  the  miner  may  locate  the  theoretical 
apex  where  the  vein  dips  out  of  the  agricultural  patent  on  its 
downward  course,  and  obtain  apex  rights,  for  it  is  held  that, 
for  the  purpose  of  exploration,  discovery,  and  purchase,  the 
legal  apex  of  a  vein  that  dips  out  of  ground  disposed  of  under 
the  placer  or  nonmineral  laws  is  that  portion  of  the  vein 
within  the.  public  lands  which  would  constitute  its  actual  apex 
if  the  vein  had  no  actual  existence  in  the  ground  disposed  of. 
An  agricultural  entry  on  public  land  is  made  subject  to  any 
accrued  rights,  and  consequently  the  vein  of  a  location  older 
than  the  agricultural  entry  or  patent,  may  be  followed  into 
the  agricultural  land.  A  location  made  subsequent  to  the  issu 
ance  of  agricultural  patent  confers  no  right  to  follow  its  vein 
into  the  agricultural  ground,  but  the  status  of  a  piece  of  agri 
cultural  land  between  the  time  the  first  rights  were  initiated 


144 


MINING  LAW 


on  it  under  'the  agricultural  land  laws  and  the  time  of  making 
final  proof  and  receiving  the  receiver's  receipt  preliminary  to 
the  issuing  of  patent  is  not  known;  apparently,  any  location 
made  before  the  issuance  of  the  receiver's  receipt  would  have 
extralateral  rights  into  the  agricultural  land. 

The  apex  rights  of  a  blanket  or  flat  vein  depend  upon  how 
clear  is  the  proof  of  the  vein  dipping.  Apex  rights  are  not 
allowed  on  the  outcrop  of  the  dip,  only  on  the  apex  or  outcrop 
of  the  strike.  It  is  usually  hard,  in  the  case  of  flat  veins,  to 
say  what  is  the  strike  and  what  is  the  dip,  and  in  such  cases 
no  apex  rights  are  allowed.  Speaking  generally,  there  must 
be  a  substantial  dip  before  apex  rights  will  be  allowed.  How 
much  dip  is  required  cannot  be  said.  Deposits  which  require 
to  be  located  as  placers  have  no  apex  rights.  Known  lodes  in 
placers  have  dip  rights,  but  other  lodes  in  placers  have  not. 

Intersecting1  and  Uniting  Veins 

R.  S.,  Sec.  2336.  Where  two  or  more  veins  intersect 
or  cross  each  other,  priority  of  title  shall  govern,  and 
such  prior  location  shall  be  entitled  to  all  ore  or  mineral 
contained  within  the  space  of  intersection;  but  the  sub 
sequent  location  shall  have  the  right  of  way  through 
the  space  of  intersection,  for  the  purposes  of  the  con 
venient  working  of  the  mine.  And  where  two  or  more 
veins  unite,  the  oldest  or  prior  location  shall  take  the 
vein  below  the  point  of  union,  including  all  the  space 
of  intersection. 

The  above  needs  no  explanation.     The  same  rules  govern  in 


Pig.  30 


EXTRALATERAL  RIGHTS 


145 


the  conflict  of  apex  rights  as  shown  in  Fig.  30,  where  the 
senior  location  takes  the  part  of  the  vein  in  conflict,  while 
the  junior  location  has  the  right  to  pass  through  the  conflict 
area  to  its  part  of  the  vein  beyond.  Fig.  31  shows  the  case 


\^ 

^       • 

•»            •)££* 

•Senior                                 *£ 

Junior 

Location                {?£ 

Locafiot? 

Fig.  31 


of  two  veins  uniting  in  depth.  Claimants  under  each  location 
may  follow  the  vein  apexing  in  its  ground  until  they  unite  to 
continue  as  one  vein,  when  the  senior  locator  has  all  the  rights 
to  this  one  vein  as  it  continues  in  depth. 


CHAPTER  XXIV 
Coal  Land 

R.  S.,  Sec.  2347.  Every  person  above  the  age  of 
twenty-one  years,  who  is  a  citizen  of  the  United  States, 
or  who  has  declared  his  intention  to  become  such,  or 
any  association  of  persons  severally  qualified  as  above, 
shall,  upon  application  to  the  register  of  the  proper 
land  office,  have  the  right  to  enter,  by  legal  subdivisions, 
any  quantity  of  vacant  coal  lands  of  the  United  States 
not  otherwise  appropriated  or  reserved  -by  competent 
authority,  not  exceeding  one  hundred  and  sixty  acres  to 
such  individual  person,  or  three  hundred  and  twenty 
acres  to  such  association,  upon  payment  to  the  receiver 
of  not  less  than  ten  dollars  per  acre  for  such  lands, 
where  the  same  shall  be  situated  more  than  fifteen 
miles  from  any  completed  railroad,  and  not  less  than 
twenty  dollars  per  acre  for  such  lands  as  shall  be  within 
fifteen  miles  of  such  road. 

R.  S.,  Sec.  2348.  Any  person  or  association  of  persons 
severally  qualified,  as  above  provided,  who  have  opened 
and  improved,  or  shall  hereafter  open  and  improve,  any 
coal  mine  or  mines  upon  the  public  lands,  and  shall  be 
in  actual  possession  of  the  same,  shall  be  entitled  to 
a  preference  right  of  entry,  under  the  preceding  section, 
of  the  mines  so  opened  and  improved;  provided,  that 
when  any  association  of  not  less  than  four  persons  sev 
erally  qualified  as  above  specified,  shall  have  expended 
not  less  than  five  thousand  dollars  in  working  and  im 
proving  any  such  mine  or  mines,  such  association  may 
enter  not  exceeding  six  hundred  and  forty  acres,  includ 
ing  such  mining  improvements. 

R.  S.,  Sec.  2349.  All  claims  under  the  preceding  sec 
tion  must  be  presented  to  the  register  of  the  proper 
land  district  within  sixty  days  after  the  date  of  actual 
possession  and  the  commencement  of  improvements  on 
the  land,  by  the  filing  of  a  declaratory  statement  there 
for;  but  when  the  township  plat  is  not  on  file  at  the 
date  of  such  improvement,  filing  must  be  made  within 
sixty  days  from  the  receipt  of  such  plat  at  the  district 
office;  and  where  the  improvements  shall  have  been 
146 


COAL  LAND  147 

made  prior  to  the  expiration  of  three  months  from  the 
third  day  of  March,  1873,  sixty  days  from  the  expira 
tion  of  such  three  months  shall  be  allowed  for  the  filing 
of  a  declaratory  statement,  and  no  sale  under  the  pro 
visions  of  this  section  shall  be  allowed  until  the  expira 
tion  of  six  months  from  the  third  day  of  March,  1873. 

R.  S.,  Sec.  2350.  The  three  preceding  sections  shall 
be  held  to  authorize  only  one  entry  by  the  same  person 
or  association  of  persons;  and  no  association  of  persons, 
any  member  of  which  shall  have  taken  the  benefit  of 
such  sections,  either  as  an  individual  or  as  a  member 
of  any  other  association,  shall  enter  or  hold  any  other 
lands  under  the  provisions  thereof;  and  no  member  of 
any  association  which  shall  have  taken  the  benefit  of 
such  sections,  shall  enter  or  hold  any  other  lands  under 
their  provisions;  and  all  persons  claiming  under  sec 
tion  2348  shall  be  required  to  prove  their  respective 
rights  and  pay  for  the  lands  filed  upon,  within  one  year 
from  the  time  prescribed  for  filing  their  respective 
claims;  and  upon  failure  to  file  the  proper  notice,  or 
pay  for  the  land  within  the  required  period,  the  same 
shall  be  subject  to  entry  by  any  other  qualified  applicant. 

R.  S.,  Sec.  2351.  In  case  of  conflicting  claims  upon 
coal  lands,  where  the  improvements  shall  be  commenced 
after  the  third  day  of  March,  1873,  priority  of  possession 
and  improvement,  followed  by  proper  filing  and  con 
tinued  good  faith,  shall  determine  the  preference  right 
to  purchase.  And  also,  where  improvements  have  al 
ready  been  made  prior  to  the  third  day  of  March,  1873, 
division  of  the  land  claimed  may  be  made  by  legal 
subdivisions,  to  include,  as  near  as  may  be,  the  valuable 
improvements  of  the  respective  parties.  The  Commis 
sioner  of  the  General  Land  Office  is  authorized  to  issue 
all  needful  rules  and  regulations  for  carrying  into  effect 
the  provisions  of  this  and  the  four  preceding  sections. 

R.  S.,  Sec.  2352.  Nothing  in  the  five  preceding  sec 
tions  shall  be  construed  to  destroy  or  impair  any  rights 
which  may  have  attached  prior  to  the  third  day  of 
March,  1873,  or  to  authorize  the  sale  of  lands  valuable 
for  mines  of  gold,  silver,  or  copper. 

The  above  are  the  Federal  Statutes  relating  to  the  sale  of 
coal  lands  in  the  United  States;  they,  with  some  amendments 
which  will  not  be  treated  herein,  have  been  extended  to  Alaska. 
An  individual  over  twenty-one  years  of  age,  who  is  a  citizen 
of  the  United  States,  or  has  announced  his  intention  to  become 


148  MINING  LAW 

such,  may  enter  not  to  exceed  160  acres  of  coal  land.  An  asso 
ciation  of  persons  or.  a  corporation  may  enter  320  acres.  An 
association  or  corporation  of  not  less  than  four  persons,  who  have 
expended  not  less  than  $5,000  in  working  and  improving  their 
mines,  may  enter  not  to  exceed  640  acres.  The  right  to  enter 
coal  lands  may  be  exercised  once  only,  whether  as  an  individual 
or  as  a  member  of  an  association  or  corporation,  no  matter  if 
the  entry  is  of  the  maximum  size  or  less.  No  corporation  or 
association  which  contains  a  member  who  has  exercised  his  right 
individually  or  as  an  association  member  may  make  an  entry. 
The  minimum  price  is  $10  per  acre  for  coal  lands  more  than 
fifteen  miles  from  a  completed  railroad,  and  $20  per  acre  when 
within  that  distance. 

Two  methods  of  purchasing  coal  lands  are  provided.  The 
first  is  by  what  is  known  as  a  'cash  entry.'  The  procedure 
is  to  file  an  application  in  the  local  land  office  by  legal  sub 
divisions,  consequently  it  can  be  made  upon  surveyed  land  only. 
The  application  is  published  in  a  newspaper  nearest  the  land; 
it  is  also  posted  in  a  conspicuous  spot  on  the  land  and  in 
the  land  office,  as  a  notice  to  those  who  may  wish  to  adverse 
or  protest.  Thirty  days  of  posting  and  publication  are  required. 
Within  thirty  days  of  the  expiration  of  publication  period,  appli 
cant  must  file  proofs  of  publication  and  posting,  and  tender  the 
purchase  price  of  the  land,  resulting  eventually  in  patent  to 
the  land. 

The  second  method  of  purchase  is  by  initiating  and  main 
taining  a  'preference  right  of  entry'  to  be  followed  by  a  cash 
entry.  The  applicant  initiates  a  preference  right  of  entry  by 
beginning  improvements  upon  the  land,  which  must  be  actual 
bona  fide  work  and  open  up  a  mine  or  mines  of  coal.  To  main 
tain  and  preserve  a  preference  right  of  entry,  the  applicant 
must,  within  sixty  days  of  exposing  coal  and  beginning  its 
improvement,  if  upon  surveyed  land,  or  if  upon  unsurveyed 
land  then  within  sixty  days  of  the  filing  of  township  plat  in 
the  local  land  office,  file  a  declaratory  statement  in  the  local 
land  office.  The  declaratory  statement  is  to  the  effect  that 
applicant  has  entered  upon  the  land,  begun  improvements,  and 
intends  to  purchase  the  land.  Within  one  year  after  the  expira- 


COAL  LAND  149 

tion  of  the  period  for  filing  the  declaratory  statement,  the  appli 
cant  must  file  application  to  purchase  land  and  thereafter  pro 
ceed  as  in  the  case  of  a  cash  entry.  Applicants  for  coal  lands 
that  are  unsurveyed  may  secure  the  surveys  necessary  for 
entry  through  application  to  the  surveyor-general. 

Up  to  July  1906  coal  lands  were  disposed  of  at  the  minimum 
price  of  $10  and  $20  per  acre.  At  that  date  and  since,  large 
areas  reported  to  contain  coal  have  been  withdrawn  from  all 
forms  of  entry.  These  withdrawn  areas  have  been  or  are  being 
classified  by  the  United  States  Geological  Survey  through  field 
examination  into  coal  and  noncoal  lands,  and  restored  to  entry 
as  fast  as  possible.  Those  classified  as  coal  lands  were  formerly 
subject  to  such  entry  only,  excepting  mineral  locations  for  other 
minerals,  and  at  the  valuation  per  acre  placed  upon  them  by 
the  Geological  Survey.  They  may  now  be  filed  upon  for  coal 
at  the  valuation  set,  or  the  surface  only  obtained  by  an  agri 
cultural  entry  relinquishing  the  coal  to  the  Government,  which 
may  dispose  of  it  to  other  parties. 

The  basis  of  the  valuation  made  by  the  Geological  Survey 
is  contained  in  the  'Regulations  regarding  the  classification  and 
valuation  of  coal  lands,  as  approved  to  June  6,  1910,  by  the 
Secretary  of  the  Interior,'  as  follows: 

(1)  For    the    purposes    of    classification    and    valuation,    coal 
deposits    shall    be    divided    into    four    classes:       (a)    Anthracite, 
semi-anthracite,    coking,    and    blacksmithing    coals;     (&)     high- 
grade   bituminous   noncoking  coals   having  a   fuel   value   of   not 
less    than    12,000    B.T.U.    on    an    unweathered    air-dried    sample; 
(c)    bituminous   coals   having  a   fuel   value   of  less   than   12,000 
B.T.U.  on  an  unweathered  air-dried  sample,  and  high-grade  sub- 
bituminous  coals  having  a  fuel  value  of  more  than  9,500  B.T.U. 
on    an    unweathered    air-dried    sample;     (d)    low-grade    sub-bitu 
minous    coals    having    a    fuel    value    below    9,500    B.T.U.    on    an 
unweathered   air-dried   sample,   and   all   lignite  coals. 

(2)  Lands   underlain  by   coal  beds   which  contain   14   inches 
or  over  of  clean  coal,  exclusive  of  partings,  shall  be  classified 
as  coal   land   where  the   coal   shows   a   calorific   value   of   10,500 
B.  T.  U.  or  over  on  an  unweathered  air-dried  sample;   for  coals 
having   a  less   calorific   value   the   minimum    thickness   shall   be 


150  MINING  LAW 

increased  one  inch  for  every  decrease  of  100  B.T.U.  below  10,500. 
Thus,  the  minimum  thickness  of  a  coal  having  a  B.T.U.  value 
of  8,500  on  an  unweathered  air-dried  sample  will  be  34  inches. 

(3)  Lands  containing  coals  of  classes  a  and  &  of  any  thick 
ness  at  depths  greater  than  3,000  ft.  shall  be  classified  as  non- 
coal    lands,    except    where    the    coal    lies    within    three   miles   of 
a  point  where  it  can  be   reached   by   a  3,000-ft.   shaft  and   the 
depth  to  the  coal  from  the  mouth  of  the  shaft  does  not  exceed 
3,000  ft.,  or  where  the  coal  lies  within  six  miles  of  the  outcrop 
if  the  bed  is  horizontal,  which  distance  shall  be  decreased  with 
increasing   dip   to   a  limit  of   3,000   ft.   from   the  outcrop   which 
shall  apply  if  the  bed  dips  over  45°,  provided  that  in  no  case 
shall    land   containing   coals   of   grades   a   and   &   be   classed   as 
coal  land   if  the  depth   from  the  point  of  accessibility   exceeds 
3,000  feet. 

(4)  Lands   containing  coals   of   class   c  of  any   thickness   at 
a  depth  greater  than  2,000  ft.  shall  be  classed  as  noncoal  lands, 
except  where  the  coal   lies  within  two  miles  of  a  point  where 
it   can    be    reached   by   a   2,000-ft.    shaft   and   the    depth    to    the 
coal  from  the  mouth  of  the  shaft  does  not  exceed  2,000  ft.,  or 
where  the  coal  lies  within  four  miles  of  the  outcrop  if  the  bed 
is  horizontal,  which  distance  shall  be  decreased  with  increasing 
dip  to  a  limit  of  2,000  ft.  from  the  outcrop  which  shall  apply 
if  the  bed  dips  over  45°,  provided  that  in  no  case  shall  lands 
containing  coals  of  grade  c  be  classed  as  coal  land  if  the  depth 
from  the  point  of  accessibility  exceeds  2,000  feet. 

(5)  Lands   containing  coals  of  class  d  of  any   thickness   at 
a  depth  greater  than  500  ft.  shall  be  classed  as  noncoal,  except 
where   the  coal   lies  within   one  mile  of  a   point  where  it  can 
be  reached  by  a   500-ft.   shaft  and  the  depth  to  the  coal   from 
the  mouth  of  the  shaft   does  not  exceed  500   ft.,  or  where   the 
coal  lies  within  one  mile  of  the  outcrop  if  the  bed  is  horizontal, 
which    distance    shall   be    decreased    with    increasing    dip    to    a 
limit  of  500  ft.  from  the  outcrop  which  shall  apply  if  the  bed 
dips  over  45°,  provided  that  in  no  case  shall  lands  containing 
coals  of  grade  d  be  classed  as  coal  land  if  the  depth  from  the 
point  of  accessibility  exceeds  500  feet. 

(6)  The  price  of  coal  lands  of  classes  a,   &,  and  c  shall  be 


COAL  LAND  151 

determined  on  the  basis  of  the  estimated  tonnage  at  the  rate 
of  one-half  to  one  cent  per  estimated  ton  for  class  c;  one  to 
two  cents  per  ton  for  class  &;  and  two  to  three  cents  per  esti 
mated  ton  for  class  a,  when  the  lands  are  within  fifteen  miles 
of  a  completed  railroad,  and  half  that  much  when  at  a  greater 
distance,  but  the  price  shall  in  no  case  exceed  $300  per  acre, 
except  in  districts  which  contain  large  coal  mines,  where  the 
character  and  extent  of  the  coal  are  well  known  to  the  pur 
chaser.  When,  however,  topographic  conditions  affect  the  acces 
sibility  of  the  coal,  the  land  within  the  fifteen-mile  limit  may 
be  given  a  lower  valuation,  but  in  no  case  shall  it  be  placed 
at  less  than  the  minimum,  and  a  graded  allowance  may  be  made 
for  increasing  depth  with  the  same  restrictions. 

(7)  The  rates  per  ton  in  the  preceding  paragraph  are  based 
on  the  assumption  that  only  one  bed  of  coal  is  present.  If 
more  than  one  bed  occurs  in  any  tract  of  land,  in  such  rela 
tionship  that  the  mining  of  one  will  not  necessarily  disturb 
the  other,  then  for  the  second  bed  there  shall  be  added  to  the 
price  of  the  first  bed,  60%  of  the  value  of  the  second  bed  accord 
ing  to  the  schedule;  40%  of  the  value  of  the  third,  and  30% 
of  the  value  of  each  additional  bed,  but  the  estimated  price 
for  coal  land  shall  in  no  case  exceed  $300  per  acre,  except  in 
districts  which  contain  large  coal  mines  where  the  character 
and  extent  of  the  coal  deposits  are  well  known  to  the  purchaser. 
Where  a  bed  is  over  15  ft.  thick,  the  normal  value  shall  be 
placed  only  on  15  ft.  thick;  the  next  15  ft.  or  part  thereof  shall 
be  valued  at  60%  of  the  normal;  and  the  rest  of  the  bed  at 
30%  of  the  normal. 

(8)  The  tonnage  shall  be  estimated  for  the  purpose  of  valu 
ation  on  the  basis  of  1,000  tons  of  recovery  per  acre-foot. 

(9)  The  coal  price  of  lands  of  class  d  shall  be  the  minimum 
provided   by    law,    $20    per   acre    when    within    fifteen   milos    of 
a  railroad,  and   $10  per  acre  when  at  a  greater  distance. 

(10)  In   all  valuations  of  coal  lands,   any  special   conditions 
enhancing  the  value  of  the  land  for  coal-mining  purposes  shall 
be  taken  into  consideration. 

(11)  When   only    a   part    of   a    smallest    legal    subdivision    is 
underlain  by  coal,  the  price  per  acre  shall  be  fixed  by  dividing 


152  MINING  LAW 

the  total  estimated  coal  values  by  the  number  of  acres  in  the 
subdivision,  but  in  no  case  shall  this  be  less  than  the  minimum 
provided  by  law. 

(12)  When  lands  which  were  at  time  of  classification  more 
than  fifteen  miles  from  a  railroad,  are  brought  within  the  fifteen- 
mile    limit   by   the   beginning   of   operation   of   a  new    road,   all 
values  given   in   the  original   classification   shall  be  doubled  by 
the  register  and  receiver. 

(13)  Except  in  cases  of  entries  now  pending  or  entries  made 
prior  to  classification,  review  of  classification  or  valuation  may 
be  had  only  upon  application  therefor  to  the  Secretary  of  the 
Interior,  accompanied  by  a  showing  clearly  and  specifically  set 
ting  forth   conditions   not  existing  or  known   at  time  of  exam 
ination. 

Persons  desiring  to  make  an  agricultural  or  non-mineral  entry 
on  land  classified  as  coal,  may  ask  for  reclassification  by  pre 
senting  evidence  to  show  that  the  coal  classification  is  errone 
ous.  If  a  reclassification  is  denied,  they  may  ask  for  a  hearing 
in  the  local  land  office  to  overthrow  the  existing  classification, 
at  which  they  must  assume  the  burden  of  proof,  the  defense 
of  the  coal  classification  being  made  for  the  Government  by 
the  Field  Service  of  the  General  Land  Office.  If,  as  a  result 
of  a  reclassification  or  a  hearing,  the  land  is  "decided  to  be  non- 
coal,  nonmineral  filings  and  entries  may  be  made.  However, 
the  classification  by  the  Geological  Survey  has  not  been  a  per 
functory  and  nominal  one,  but  is  a  result  of  thorough  and 
careful  investigation  by  geologists  well  trained  in  the  work. 

The  title  to  land  entered  and  patented  as  agricultural  or 
nonmineral  land,  but  which  before  final  proof  for  patent  was 
made,  was  classified,  claimed,  or  reported  to  be  valuable  for 
coal,  is  subject  to  attack  by  the  Government  in  its  efforts  to 
recover  the  coal,  within  the  six  years  from  date  of  patent  as 
prescribed  by  the  Statute  of  Limitations.  To  provide  relief 
for  those  who  in  good  faith  took  up  land  under  the  nonmineral 
laws,  which  was  classified,  claimed,  or  reported  to  be  valuable 
for  coal,  not  before  filing  was  made,  but  after  and  before  final 
proof,  an  Act  was  passed  in  1909  enabling  the  nonmineral  entry- 
man  to  relinquish  the  coal  to  the  United  States  and  receive  the 


COAL  LAND  153 

surface,  subject  to  the  right  of  the  party  who  may  purchase 
the  coal  from  the  United  States,  to  enter  and  remove  the  coal 
after  providing  for  payment  of  all  damages  that  may  be  caused 
the  surface  owner.  The  nonmineral  entryman  may  choose  to 
deny  the  existence  of  coal.  This  will  result  in  a  land  office 
hearing  or  contest,  where  the  burden  of  proof  is  on  the  Gov 
ernment,  since  the  nonmineral  filing  establishes  or  classifies 
the  land  as  nonmineral.  Should  the  fact  that  the  land  is  coal 
land  be  established  in  the  contest,  the  entryman  may  still 
relinquish  the  coal  to  the  United  States  and  receive  the  surface, 
notwithstanding  the  bad  faith  he  has  shown  by  not  doing  so 
at  once.  The  scope  of  the  above  law  separating  the  surface  of 
the  land  from  the  coal  underneath  was  extended  in  1910  so 
that  an  agricultural  or  nonmineral  entry,  reserving  the  coal 
to  the  United  States,  may  be  made  upon  land  classified  as  coal 
or  withdrawn  pending  such  classification.  This  law  throws  open 
to  occupation  and  purchase  under  the  agricultural  and  nonmin 
eral  laws  large  areas  that  were  heretofore  subject  to  entry  as 
coal  land  only,  or  completely  withdrawn  from  entry  for  the 
time  being.  Land  entered  under  the  nonmineral  laws,  which 
has  been  claimed,  reported,  or  found  valuable  for  coal  after 
final  proof  upon  an  agricultural  entry,  and  not  before,  cannot 
be  recovered  by  the  Government. 


CHAPTER  XXV 

Timber  and  Stone  Act 

While  building  stone,  both  upon  surveyed  and  unsurveyed 
land,  may  be  taken  up  as  placer  claims,  it  may  also  be  taken 
up  under  the  Timber  and  Stone  Act  when  upon  surveyed  land. 
Timber  or  stone  land,  to  come  under  the  provisions  of  this  law, 
must  be  surveyed  land  in  the  public-land  States,  excluding 
Alaska,  Arizona,  and  New  Mexico.  It  must  contain  no  mining 
claim  or  constructive  entry;  that  is,  must  be  unoccupied.  The 
land  must  be  nonmineral  to  the  extent  of  not  warranting  de 
velopment  for  mineral  purposes.  Trees  suitable  for  construction 
purposes  of  any  nature  are  regarded  as  timber.  Trees  fit  for 
fuel  only,  are  not  so  regarded  and  land  so  forested  is  not  sub 
ject  to  entry  under  this  law.  Land  more  valuable  for  its  timber 
or  stone  than  for  cultivation,  is  subject  to  this  entry,  even 
though  it  have  some  value  for  cultivation  before  or  after  re 
moval  of  the  timber  or  stone.  Entry  cannot  be  made  under 
this  guise  for  land  more  valuable  for  other  purposes  or  essen 
tially  intended  for  other  purposes. 

An  individual  over  21  years  of  age,  who  is  a  citizen  of  the 
United  States  or  has  announced  his  intention  to  become  such, 
may  make  one  entry  only  of  a  maximum  size  of  160  acres; 
provided  he  has  not  acquired,  or  is  claiming,  since  August  30, 
1890,  under  the  nonmineral  laws  an  amount  of  public  land, 
which,  together  with  the  timber  and  stone  entry,  would  exceed 
320  acres.  An  association  or  incorporation,  whose  members  or 
stockholders  are  so  qualified,  may  also  make  entry.  The  appli 
cant  must  file  an  application  by  contiguous  legal  subdivisions 
in  the  local  land  office.  The  application  states  the  qualifications 
of  the  applicant  and  that  he  has  examined  the  land  within 
thirty  days,  also  its  condition  and  probable  value.  This  is 
accompanied  by  a  filing  fee  of  $10.  If  the  application  is  ac- 
154 


TIMBER  AND  STONE  ACT  155 

cepted,  the  land  will  be  appraised  by  a  timber  cruiser  or  other 
employee  of  the  Field  Service.  Within  thirty  days  after  the 
appraisement,  or  lapse  of  the  nine  months  appraisement  period, 
applicant  must  tender  the  appraised  price,  or  the  valuation  made 
in  his  application  if  no  appraisement  is  made,  which  must  not 
be  less  than  $2.50  per  acre.  Facilities  are  provided  for  re- 
appraisement  where  protest  is  made.  After  payment  of  purchase 
price,  a  date  will  be  set  for  final  proof.  Notice  that  this  final 
proof  will  be  made  is  posted  in  the  local  land  office  and  pub 
lished  in  a  newspaper  nearest  the  land  for  the  sixty  days  prior 
to  the  day  set  for  final  proof.  After  final  proof,  if  there  are 
no  protests  or  adverses  pending,  entry  will  be  allowed,  and 
patent  will  eventually  issue.  Protests  may  be  made  any  time 
before  final  entry  is  allowed,  and  contests  may  be  filed  at  any 
time  before  patent  issues. 


CHAPTER  XXVI 
Use  of  Timber  on  Public  Land 

ON    MINERAL   LAND 

ACT  OF  CONGRESS:  That  all  citizens  of  the  United 
States  and  other  persons,  bona  fide  residents  of  the  state 
of  Colorado  or  Nevada,  or  either  of  the  territories  of 
New  Mexico,  Arizona,  Utah,  Wyoming,  [North  and 
South  1  Dakota,  Idaho,  or  Montana,  and  all  other  min 
eral  districts  of  the  United  States,  shall  be,  and  are  • 
hereby,  authorized  and  permitted  to  fell  and  remove, 
for  building,  agricultural,  mining,  or  other  domestic 
purposes,  any  timber  or  other  trees  growing  or  being 
on  the  public  lands,  said  lands  being  mineral,  and  not 
subject  to  entry  under  existing  laws  of  the  United  States, 
except  for  mineral  entry,  in  either  of  said  states,  terri 
tories  or  districts  of  which  such  citizens  or  persons  may 
be  at  the  time  bona  fide  citizens,  subject  to  such  rules 
and  regulations  as  the  Secretary  of  the  Interior  may 
prescribe  for  the  protection  of  the  timber  and  of  the 
undergrowth  growing  upon  such  lands,  and  for  other 
purposes;  provided,  the  provisions  of  this  Act  shall  not 
extend  to  railroad  corporations. 

The  miner  may  cut  from  his  locations  upon  public  land  (exclud 
ing  land  in  the  National  Forests)  without  asking  for  a  permit, 
all  the  timber  necessary  in  his  mining  and  development  opera 
tions;  but  as  he  is  only  an  occupant  operating  under  a  license, 
although  owning  the  mineral  under  his  possessory  right,  he 
does  not  own  the  timber  so  as  to  be  able  to  make  whatever 
disposition  of  it  he  wishes,  until  the  issuance  of  the  receiver's 
receipt  in  the  process  of  patenting  the  claim.  Up  to  the  issu 
ance  of  the  receiver's  receipt,  he  cannot  sell  any  timber  from 
his  claim;  and  it  appears  that  he  cannot  lawfully  cut  timber 
from  his  locations,  without  a  permit,  for  other  purpose  than 
that  connected  with  their  development  and  the  milling,  smelt 
ing,  or  reduction  of  his  ores.  Though  the  surplus  of  timber  cut 
156 


TIMBER  ON  PUBLIC  LAND  157 

in  clearing  the  land  necessary  for  mining  and  occupation  pur 
poses,  may  be  sold  or  used,  such  cutting  should  be  done  under 
bona  fide  conditions. 

The  above  Statute  refers  only  to  the  States  mentioned,  and 
not  to  the  other  mining-law  States  referred  to  in  this  work — 
California,  Oregon,  Washington,  and  the  District  of  Alaska. 
A  similar  provision  has  been  separately  provided  for  Alaska. 
The  Statute  by  the  clause,  "and  all  other  mineral  districts  of 
the  United  States",  undoubtedly  meant  to  include  the  mineral 
lands  of  California,  Oregon,  and  Washington,  but  owing  to  the 
fact  that  such  a  construction  would  have  led  to  the  cutting 
of  large  quantities  of  public  timber  for  commercial  purposes 
and  against  the  intent  of  the  Statute,  the  Department  of  the 
Interior  and  the  courts  have  held  the  clause  to  be  surplusage 
and  without  weight.  The  Act  applies  only  to  lands  subject  to 
mineral  entries.  Lands  subject  to  mineral  entry  are  lands 
known  to  contain  such  deposits  of  mineral  as  warrant  a  prudent 
person  in  expending  his  time  and  money  in  the  reasonable  ex 
pectation  of  developing  a  mine  thereon. 

Application  for  permit  to  cut  timber  without  charge  in  accord 
ance  with  the  above  Act,  must  be  presented  or  mailed  to  the 
register  and  receiver  of  the  local  land  office,  or  the  Chief  of 
Field  Division  having  jurisdiction  over  the  land,  who  will  supply 
application  forms  upon  request.  Application  shall  set  forth 
names  and  legal  residences  of  persons  applying  to  fell  and  re 
move  timber,  names  and  residences  of  persons  who  are  to  use 
the  timber,  amount  of  timber  required  for  each  person,  and 
the  use  to  be  made  thereof,  date  it  is  desired  to  begin  cutting, 
and  description  of  land  to  be  cut  over.  No  timber  may  be  cut 
for  sale  or  transported  from  or  used  out  of  the  State  in  which 
it  is  cut.  Persons  who  commence  cutting  before  their  permits 
receive  the  final  approval  of  the  Commissioner  of  the  General 
Land  Office,  will  be  liable  for  a  reasonable  stumpage  if  the 
permits  are  not  approved.  Where  permits  are  secured  by  fraud, 
or  immature  trees  are  taken,  or  timber  is  not  used  or  taken 
in  accordance  with  the  terms  of  the  law,  the  Government  will 
enforce  civil  and  criminal  liabilities  as  in  other  cases  of  timber 
trespass  upon  public  land.  These  may  range  from  the  stumpage 


158  MINING  LAW 

value  of  the  timber  cut  in  the  case  of  an  unintentional  trespass 
to  the  value  of  the  timber  where  found,  and  a  fine  not  exceeding 
$500;  to  which  may  be  added  imprisonment  for  six  months,  in 
case  of  wilful  and  malicious  timber  trespass.  There  is  no 
authorization  to  cut  any  small  or  limited  amount  of  timber 
under  the  above  Act  without  a  permit.  The  Government,  of 
course,  has  no  jurisdiction  over  the  timber  on  patented  claims 
or  land. 

ON    NONMINERAL  LAND 

ACT  OF  CONGRESS:  And  in  the  states  of  Colorado, 
Montana,  Idaho,  North  Dakota,  South  Dakota,  Wyoming, 
and  the  District  of  Alaska,  and  the  gold  and  silver  re 
gions  of  Nevada  and  the  territory  of  Utah,  [and  amended 
to  include  New  Mexico,  Arizona,  California,  Oregon,  and 
Washington]  in  any  criminal  prosecution  or  civil  action 
by  the  United  States  for  a  trespass  on  such  public  tim 
ber  lands,  or  to  recover  timber  or  lumber  cut  thereon, 
it  shall  be  a  defense  if  the  defendant  shall  show  that 
the  said  timber  was  so  cut  or  removed  from  the  timber 
lands  for  use  in  such  state  or  territory  by  a  resident 
thereof  for  agricultural,  mining,  manufacturing,  or 
domestic  purposes,  under  rules  and  regulations  made 
and  prescribed  by  the  Secretary  of  the  Interior,  and 
has  not  been  transported  out  of  the  same;  but  nothing 
herein  contained  shall  operate  to  enlarge  the  rights  of 
any  railway  company  to  cut  timber  on  the  public 
domain,  provided  that  the  Secretary  of  the  Interior 
shall  make  suitable  rules  and  regulations  to  carry  out 
the  provisions  of  this  Act;  and  he  may  designate  the 
sections  or  tracts  of  land  where  timber  may  be  cut; 
and  it  shall  not  be  lawful  to  cut  or  remove  any  timber 
except  as  may  be  prescribed  by  such  rules  and  regula 
tions;  but  this  Act  shall  not  operate  to  repeal  the  Act 
of  June  third,  eighteen  hundred  and  seventy-eight,  pro 
viding  for  the  cutting  of  timber  on  mineral  lands.  (See 
p.  156.) 

The  intention  of  the  above  Act  is  to  enable  settlers  upon 
public  lands  and  other  residents  within  the  States  mentioned— 
which  include  all  of  the  mining-law  States  as  treated  in  this 
work — to  secure  from  public  lands  of  a  nonmineral  character, 
timber  or  lumber  for  agricultural,  mining,  manufacturing,  or 
domestic  purposes,  for  use  in  the  State  obtained,  under  rules 


TIMBER  ON  PUBLIC  LAND  159 

and  regulations  prescribed  by  the  Secretary  of  the  Interior. 
Such  timber  or  lumber  cannot,  however,  be  taken  for  sale  or 
disposal,  for  use  by  other  persons,  or  for  export  from  the  State 
in  which  cut.  Timber  or  lumber  to  a  stumpage  value  of  $50 
a  year  can  be  cut  without  a  permit,  which  is  in  contrast  to 
the  case  of  cutting  on  mineral  lands  where  application  should 
be  made  to  cut  any  appreciable  amount.  A  permit  to  cut  to 
exceed  a  stumpage  value  of  $50  per  year  without  charge,  can 
be  obtained  as  on  mineral  lands.  In  cases  where  qualified 
persons  are  not  in  a  position  to  procure  timber  from  public 
lands  themselves,  it  is  allowable  to  them  to  secure  the  cutting, 
removing,  sawing,  or  other  manufacture  of  the  timber  through 
the  medium  of  others  upon  an  agreement  with  the  parties  thus 
acting  as  their  agents  that  they  shall  be  paid  a  sufficient  sum 
only  to  cover  their  time,  labor,  and  other  legitimate  expenses 
incurred  in  connection  therewith,  exclusive  of  any  charge  for 
the  timber  itself;  but  no  person,  whether  acting  for  himself,  as 
an  agent  for  another,  or  otherwise,  will  be  permitted  to  cut 
or  remove  in  any  one  year,  timber  or  lumber  to  an  amount 
exceeding  in  stumpage  value  $50,  except  upon  the  granting 
of  a  permit. 

A  homesteader  is  entitled  to  use  all  the  timber  from  his 
entry  necessary  to  work  his  land,  but  before  making  final 
proof  can  dispose  of  none  except  the  surplus  made  in  the  neces 
sary  clearing  of  his  land  for  bona  fide  cultivation. 

It  is  important  to  note  that  a  corporation,  mining  or  other 
wise,  cannot  obtain  timber  under  the  laws  herein  discussed, 
either  for  mineral  or  nonmineral  ground,  unless  it  is  organized 
and  chartered  under  the  laws  of  the  State  in  which  it  wishes 
to  cut  timber.  This  arises  from  the  facts  that  both  Statutes 
read  that  only  residents  of  a  State  may  cut  timber  in  it,  and 
that  corporations  chartered  outside  of  a  State  are  considered 
as  foreign  or  nonresident  corporations  or  legal  individuals. 
Timber  trespass  suits  of  considerable  magnitude  have  been  suc 
cessfully  prosecuted  on  this  point  by  the  Government,  notwith 
standing  that  it  appears  in  the  light  of  an  unjust  technicality. 
The  law  that  timber  cannot  be  cut  in  one  State  to  be  used  in 
another  is  strictly  enforceable,  even  though  it  is  to  be  used 


160  MINING  LAW 

in   the  same  district,   as   in   the  case   of  a  district  lying  partly 
in  two  States. 

If  the  necessary  timber  cannot  be  secured  under  the  preceding 
two  laws,  or  lawfully  taken  from  valid  locations,  the  only  re 
course  is  to  purchase  it  in  the  open  market,  off  of  patented 
land,  or  from  the  Forest  Service;  to  patent  a  piece  of  land  for 
the  timber;  or  to  file  on  a  piece  of  public  timber  land  under 
a  Timber  and  Stone  entry. 

TIMBER    IN    ALASKA 

Actual  settlers,  residents,  individual  miners,  and  prospectors 
for  minerals,  not  associations  or  corporations,  may  take  timber 
from  the  public  lands  in  Alaska  for  firewood,  fencing,  buildings, 
mining,  prospecting,  or  other  domestic  purposes,  without  charge 
and  without  application  or  previous  permit,  the  amount  not 
to  exceed  a  stumpage  value  of  $50  in  any  one  calendar  year. 
No  timber  may  be  sold,  but  an  agent  may  be  employed  to  cut 
it.  Application  to  purchase  timber  to  be  cut  for  use  in  Alaska, 
but  not  for  export,  may  be  made  to  the  receiver  of  the  local 
land  office  for  the  district,  to  be  acted  upon  similar  to  applica 
tions  to  cut  timber  in  the  United  States. 


CHAPTER  XXVII 

Timber  and  Mines  Within  National  Forests 

ACT  OF  CONGRESS:  *  *  *  Nor  shall  anything 
herein  prohibit  any  person  from  entering  upon  such 
forest  reservations  for  all  proper  and  lawful  purposes, 
including  that  of  prospecting,  locating,  and  developing 
the  mineral  resources  thereof.  Provided,  that  such  per 
sons  comply  with  the  rules  and  regulations  covering 
such  forest  reservation.  *  *  *  And  any  mineral  lands 
in  any  forest  reservation,  which  have  been  or  which 
may  be  shown  to  be  such,  and  subject  to  entry  under 
the  existing  mining  laws  of  the  United  States,  and  the 
rules  and  regulations  applying  thereto,  shall  continue 
to  be  subject  to  such  location  and  entry. 

The  Forest  Reserves  or  National  Forests,  as  they  are  more 
formally  and  properly  known — since  the  term  Forest  Reserve  is 
now  obsolete  officially — are  tracts  of  government  land  wholly 
or  partly  covered  with  timber  or  undergrowth,  that  have  been 
set  aside  by  Congress  or  the  President  of  the  United  States. 
These  tracts  have  been  withdrawn  from  entry  to  preserve  a  per 
petual  supply  of  timber,  to  prevent  destruction  of  the  forest 
cover  which  regulates  the  flow  of  streams,  to  protect  local  resi 
dents  from  unfair  competition  in  the  use  of  forest  and  range,  to 
conserve  the  live-stock  range  from  deterioration,  and  to  lessen 
the  loss  and  danger  from  forest  fires.  The  National  Forests  are 
under  the  jurisdiction  of  both  the  Secretary  of  the  Interior  and 
the  Secretary  of  Agriculture,  but  the  authority  and  jurisdiction 
of  each  is  separate  and  distinct.  The  Department  of  the  In 
terior,  as  represented  mainly  by  the  General  Land  Office,  has 
entire  jurisdiction  in  surveying  and  passing  title  and  permanent 
rights  or  easements  to  land  within  National  Forests,  just  as  it 
has  over  public  land  in  general.  The  Department  of  Agriculture, 
as  represented  by  the  Forest  Service,  has  entire  jurisdiction  re- 

161 


162  MINING  LAW 

garding  the  care  and  conduct  of  National  Forests,  and  the  grant 
ing  of  permits  for,  the  occupancy  of  lands  and  the  uses  of  the 
resources  of  the  National  Forests,  that  do  not  affect  or  cloud  the 
fee  title  to  the  land.  Forests  and  timber  belonging  to  the  Gov 
ernment,  which  are  outside  of  National  Forests,  are  in  no  way 
connected  with  the  National  Forests,  and  are  not  under  any 
jurisdiction  of  the  Forest  Service,  but  solely  under  that  of  the 
Department  of  the  Interior  through  the  General  Land  Office 
mainly,  just  as  any  other  unreserved  public  land. 

By  the  Statute  quoted,  it  is  provided  that  prospecting  and 
mining  may  be  carried  on  within  National  Forests,  under  the 
provisions  of  the  Federal  Statutes,  Land  Department  regula 
tions,  State  -statutes,  and  district  rules,  just  as  on  public  domain 
outside  of  the  National  Forests,  except  that  the  rules  and  regu 
lations  covering  such  National  Forests  must  be  complied  with 
additionally.  Townsites  may  be  obtained  under  the  townsite 
laws  and  regulations,  by  first  having  the  area  to  be  located  as  a 
townsite  removed  from  the  National  Forest  by  proclamation  or 
executive  order  of  the  President;  as  this  is  a  rather  difficult 
procedure,  townsites  and  camp  sites  about  mines  in  National 
Forests  are  usually  located  as  mining  and  millsite  claims.  The 
National  Forests  are  open  to  no  location  other  than  mineral — 
which  includes  the  location  of  coal  under  the  coal-land  laws — 
except  homestead  entries  upon  agricultural  land  under  a  special 
Act.  Permits  are  necessary  for  all  occupancy,  use,  operation,  or 
enterprises  of  any  kind  within  National  Forests,  except  upon 
patented  lands  or  claims,  upon  valid  locations  for  purposes  neces 
sary  to  their  actual  development  and  consistent  with  their 
character,  and  except  for  prospecting  for  mineral,  transient 
camping,  hunting,  fishing,  exploration,  and  surveying  for  lawful 
projects.  All  persons  must  secure  permits  before  grazing  any 
stock  on  open  land  in  a  National  Forest,  except  for  the  few  head 
in  actual  use  by  prospectors,  campers,  and  travelers.  Persons 
who  may  wish  to  make  any  use  of  the  resources  of  the  National 
Forests  for  which  a  permit  is  required,  should  consult  the  nearest 
Forest  Officer. 

The  owners  of  patented  mining  claims,  of  valid  unpatented 
mining  claims,  and  of  other  valid  claims  under  public-land  laws 


MINES  WITHIN  NATIONAL  FORESTS  163 

or  legal  titles  which  may  be  within  National  Forests,  are  free 
to  occupy  and  enjoy  their  holdings,  but  must  not  interfere  with 
the  purposes  for  which  the  National  Forests  were  created,  and 
must  not  cut  timber  or  make  use  of  National  Forest  land  with 
out  a  permit,  except  within  the  limits  and  for  the  actual  de 
velopment  of  their  claims.  Permit  must  always  be  secured  to 
build  roads,  trails,  ditches,  transmission  and  telephone  lines,  etc., 
when  outside  the  limits  of  patented  claims  or  land,  unless  on 
valid  locations,  and  then  only  for  the  development  of  the  loca 
tions.  The  locator  or  owner  of  a  mining  location  has  a  right  to 
use  sufficient  of  the  timber  thereon  to  develop  his  claim.  Tim 
ber,  however,  cannot  be  cut  from  one  claim  to  be  used  on  another 
of  the  same  group,  unless  its  use  develops  the  claim  from  which 
it  is  cut,  as  well  as  the  one  where  it  is  used,  and  if  questioned 
the  burden  of  proof  is  upon  the  claimant  to  show  this.  Timber 
from  one  group  of  mining  claims  cannot  be  used  to  develop 
another  noncontiguous  and  separate  group,  although  the  two 
are  owned  in  common.  However,  it  is  generally  accepted  that 
the  rule  on  unreserved  public  land  that  timber  may  be  taken 
from  one  claim  for  use  on  a  noncontinguous  claim  or  group  if 
its  use  tends  to  develop  the  claim  from  which  it  was  taken,  also 
holds  good  within  National  Forests.  A  mining  claimant  has  no 
right  to  cut  and  remove  timber  from  his  unpatented  claim,  merely 
for  sale  or  other  commercial  purposes.  Except  the  small  quan 
tity  needed  by  transients,  permission  should  always  be  asked  by 
miners  and  settlers  for  the  free  use  of  timber  off  their  entries 
or  locations;  the  amount  so  permitted  is  usually  limited  to  $20 
worth  annually.  If  more  than  that  amount  is  desired  it  will 
usually  have  to  be  purchased.  Timber  within  National  Forests  is 
for  sale,  subject  to  the  conditions  that  the  amount  taken  shall 
not  prejudice  the  purposes  for  which  the  National  Forests  were 
created,  that  the  timber  shall  not  be  shipped  from  a  region  re 
quiring  the  entire  supply  available,  and  that  no  timber  monopoly 
shall  be  created.  Free  use  permits  will  not  be  issued  paying 
properties  and  large  corporations  who  may  reasonably  be  ex 
pected  to  pay  for  their  timber. 

Persons  who  are  in  the  legal  possession  of  unpatented  valid 
mining  claims  have  the  right  to  use  such  portion  of  the  grass 


164  MINING  LAW 

and  other  forage  as  is  needed  for  the  grazing  of  live  stock  used 
In  the  development  of  the  claims,  but  they  have  no  right  to 
dispose  of  the  grass  or  forage  to  any  other  person,  or  to  collect 
any  rental  for  the  use  of  such  claims  for  grazing  purposes.  The 
owners  of  patented  claims  or  land  within  National  Forests,  of 
course  have  all  the  rights  that  ^such  patents  will  give  anywhere, 
and  can  make  any  disposition  they  wish  of  the  surface  or  its 
products. 

Much  criticism  has  been  made  of  the  Forest  Service  in  the 
past.  The  larger  part  has  come  from  those  whose  unlawful  pur 
suits  and  purposes  have  been  interfered  with,  such  as  endeavor 
ing  to  obtain  timber  or  water-power  sites  by  invalid  and  nominal 
mineral  locations,  or  attempting  to  make  use  of  public  lands  for 
grazing  purposes  to  an  inordinate  extent  or  the  exclusion  of 
others  also  entitled  to  the  same  use.  There  are  presumably  two 
other  causes  of  criticism.  First,  when  the  Forest  Service  was 
first  organized,  it  was  natural,  that  in  attempting  to  meet  and 
work  out  the  questions  involved  in  a  problem  of  such  magnitude 
and  with  so  many  conflicting  interests,  many  minor  errors 
should  occur  and  wrong  attitudes  should  be  taken  in  the  process 
of  developing  a  system  and  learning  the  best  procedure.  Con 
sequently  there  was  great  friction  between  miners  and  the  For 
est  Service  during  the  embyronic  years  of  the  National  Forest. 
This  cause  for  criticism  has  disappeared,  except  perhaps  in 
isolated  cases  where  a  new  employee  of  the  Forest  Service  may 
take  an  mrvmrranted  stand;  in  such  a  case  the  miner  or  com 
plainant  should  carry  the  matter  to  the  superior  of  the  employee. 
It  is  advisable  that  the  miner  operating  within  a  National  Forest 
should  secure  a  copy  of  The  Use  Book'  of  the  Forest  Service  and 
familiarize  himself  with  the  rules  and  regulations  therein.  This 
book  can  be  secured,  without  cost,  from  any  Forest  Supervisor,  or 
by  addressing  the  Superintendent  of  Documents,  Washington, 
D.  C.,  enclosing  the  purchase  price,  which  is  twenty-five  cents. 

The  second  of  these  other  causes  of  criticism,  is  the  fact  that 
miners  and  prospectors  upon  public  land,  being  practically  un 
restrained  by  the  Government  until  a  patent  was  asked  for,  were 
unable  at  first  to  brook  the  restraint  of  the  National  Forest 
regulations  on  their  heretofore  liberty,  which  was  too  often  in- 


MINES  WITHIN  NATIONAL  FORESTS  165 

terpreted  as  a  license  to  do  whatever  and  however  they  wanted. 
This  cause  is  fast  disappearing,  for  the  straightforward  and 
public-spirited  miner  realizes  that  as  a  result  of  extensive  set 
tlement  in  or  adjacent  to  the  mineral  and  timber  regions  and 
the  great  conflict  of  interests,  it  is  just  as  necessary  to  carefully 
administer  and  protect  the  estate  of  the  Government  as  the  estate 
of  a  private  owner.  He  also  realizes  that  the  National  Forest 
system  tends  to  equalize  opportunities  and  give  the  small  miner 
and  prospector  a  fair  chance  in  competition  with  large  com 
panies  or  unprincipled  operators,  and  to  render  incalculable 
benefit  by  protecting  the  timber  and  water  for  himself  and 
others,  and  even  his  possessions  from  destruction  by  forest  fires. 
The  creation  of  the  National  Forests  has  benefited  the  mining 
industry  in  a  way  that  has  not  been  appreciated,  by  practically 
withdrawing  the  land  from  all  entries  save  under  the  mineral 
laws.  While  homestead  entries  may  be  made  within  National 
Forests,  they  can  only  embrace  land  of  a  pronounced  agricultural 
type,  and  in  a  general  way  very  few  are  made,  thus  preserving 
practically  the  whole  of  the  Forests  for  prospecting.  On  the 
other  hand,  public  land  outside  of  the  National  Forests  is  favor 
ably  subject  to  all  kinds  of  entries,  resulting  in  much  ground 
suitable  for  prospecting  being  patented  for  agricultural  and 
grazing  purposes,  even  the  miner's  locations  being  occasionally 
filed  upon  and  patented  away  from  him.  Considerable  trouble 
along  these  lines  has  been  experienced  in  certain  localities,  and 
there  is  some  reason  to  believe  that  the  mining  industry  would 
be  benefited,  though  at  the  expense  of  other  industries,  by  placing 
all  the  mineral  land  practicable  within  the  National  Forests. 

The  purpose  and  intent  of  the  Forest  Service  toward  miners 
may  be  summarized  by  saying,  that  the  Forest  Service  will  be 
severe  in  cases  of  fraud  and  bad  intention,  but  in  cases  of  good 
faith  and  honest  intention  will  be  lenient,  and  while  not  over 
looking  the  more  essential  requirements  of  the  law,  it  will  en 
courage  and  guide  the  miner  toward  a  compliance  with  the  law. 
This  is  seen  in  the  case  of  where  recommendations  are  made 
against  granting  patent  to  mining  claims  upon  the  point  that 
the  mineral  character  of  the  ground  is  not  sufficiently  estab 
lished,  through  there  being  no  mineral  discoveries  and  the  patent 


166  MINING  LAW 

work  not  developing  the  ground  of  the  claims;  still  the  miner 
is  encouraged  to  hold  his  claims  by  possessory  right  and  keep 
on  digging.  The  miner  who  finds  himself  at  difference  with  the 
Forest  Service  in  any  way,  should  patiently,  but  firmly  and  in 
sistently,  take  up  the  matter  and  thrash  it  out,  knowing  that 
the  ultimate  outcome  will  be  in  accordance  with  sound  public 
policy  and  the  rights  of  the  great  army  of  miners  and  pros 
pectors  as  a  whole. 


CHAPTER  XXVIII 

Water  Appropriation 

R.  S.,  Sec.  2339.  Whenever,  by  priority  of  possession, 
rights  to  the  use  of  water  for  mining,  agricultural, 
manufacturing,  or  other  purposes,  have  vested  and  ac 
crued,  and  the  same  are  recognized  and  acknowledged 
by  the  local  customs,  laws,  and  the  decisions  of  courts, 
the  possessors  and  owners  of  such  vested  rights  shall  be 
maintained  and  protected  in  the  same;  and  the  right  of 
way  for  the  construction  of  ditches  and  canals  for  the 
purposes  herein  specified  is  acknowledged  and  confirmed; 
but  whenever  any  person,  in  the  construction  of  any 
ditch  or  canal,  injures  or  damages  the  possession  of  any 
settler  on  the  public  domain,  the  party  committing  such 
injury  or  damage  shall  be  liable  to  the  party  injured  for 
such  injury  or  damage. 

R.  S.,  Sec.  2340.  All  patents  granted,  or  pre-emption 
or  homesteads  allowed,  shall  be  subject  to  any  vested 
and  accrued  water  rights,  or  rights  to  ditches  and  reser 
voirs  used  in  connection  with  such  water  rights,  as  may 
have  been  acquired  under  or  recognized  by  the  preceding 
section. 

When  the  pioneer  miners  arrived  in  California,  the  only  law 
on  the  use  or  possession  of  water  that  they  knew  was  the  com 
mon  law  or  riparian  right  to  the  use  of  water.  This  law  was  in 
force  in  the  older  States  and  in  England.  It  is  based  on  the 
simple  principle  that  the  owners  of  the  banks  of  a  stream  or 
body  of  water,  are  the  sole  owners  of  the  right  to  use  the  water. 
This  principle  was  found  inapplicable  to  the  new  conditions; 
conditidns  requiring  the  use  of  water  at  points  far  distant  and 
on  lands  nonadjacent  to  the  streams  from  which  the  water  was 
taken.  This  resulted  in  the  development  of  the  law  of  appro 
priation  of  water,  the  principle  of  which  is  that  the  first  appro- 
priator  of  water  for  a  beneficial  purpose  has  the  prior  right, 
without  regard  to  riparian  rights.  Most  of  the  water  in  the 

167 


168  MINING  LAW 

West  has  been  used  under  the  law  of  appropriation,  and  in  over 
half  of  the  Western  States  it  is  the  only  law  under  which  a  right 
to  use  water  can  be  perfected.  In  the  remaining  Western  States, 
the  two  laws — appropriation  and  riparian  rights — are  in  force 
side  by  side.  The  history  of  water  rights  in  the  West  is  simply 
a  phase  of  the  development  of  the  mineral-land  laws. 

Under  the  common  law  of  riparian  rights,  the  owner  of  the 
land  bordering  on  or  containing  a  stream  or  body  of  water  (as 
a  lake)  has  a  right  to  have  the  water  flow  past  or  through  his 
land  at  all  times  in  substantially  the  same  quantity  and  quality 
as  existed  when  he  or  others  before  him  first  obtained  the  land 
to  which  his  riparian  water  rights  are  attached.  At  least,  that 
the  flow  shall  not  be  reduced  in  quantity  to  a  point  that  will 
discommode  him,  subject,  where  the  quantity  is  insufficient  for 
the  wants  of  all  the  various  riparian  owners  along  the  stream, 
to  having  the  supply  apportioned  among  the  riparian  owners 
according  to  their  holdings,  and  necessities.  The  owners  of 
riparian  rights  do  not  own  the  water,  but  only  the  use  of  it. 
They  may  use  the  water  for  domestic  purposes,  for  watering 
stock,  or  for  irrigating  their  riparian  land.  Just  what  would 
be  riparian  land  entitled  to  be  irrigated  as  such,  would  be  a 
question  of  fact  for  a  jury;  certainly  land  beyond  a  ridge  and 
part  of  another  watershed  would  not  be  riparian  land.  Riparian 
rights  in  water,  where  recognized,  are  attached  to  the  land  solely 
because  it  borders  on  or  contains  the  stream  or  body  of  water. 
They  are  presumed  to  have  been  always  attached,  consequently 
they  require  no  action  or  formality  at  law  or  any  use  or  act  to 
hold  them.  They  are  not  subject  to  loss  by  abandonment  or  dis 
use,  though  the  right  to  use  the  water  to  which  the  land  is 
entitled  may  be  disposed  of  separately  from  the  land. 

Under  the  law  of  appropriation,  riparian  rights  are  entirely 
disregarded.  The  right  to  use  water  is  appropriated  by  divert 
ing  it,  usually  from  a  natural  stream  on  public  land,  or  on  pri 
vate  land  by  permission,  for  the  purpose  of  putting  it  to  a  bene 
ficial  use.  The  claimant  appropriates  his  water  subject  to  all 
prior  appropriations,  which  must  be  supplied  first  according  to 
their  actual  needs  up  to  the  amount  of  their  appropriations. 
Likewise  his  needs  up  to  the  amount  of  his  appropriation,  must 


WATER  APPROPRIATION  169 

be  supplied  before  that  of  any  subsequent  appropriators.  There 
is  no  apportioning  of  the  water,  the  first  appropriator  has  the 
first  right  and  to  the  full  amount  he  needs  or  is  entitled  to,  and 
the  other  appropriators  in  the  order  of  their  respective  appro 
priations.  Later  appropriations  may  be  made  of  the  surplus  over 
what  has  been  appropriated  by  prior  claimants  or  of  the  surplus 
that  is  not  used.  Later  comers  may  appropriate  water  above  or 
below  a  prior  appropriation,  the  water  as  discarded  by  the  prior 
appropriator,  or  the  water  temporarily  while  it  is  not  in  use  by 
him,  but  such  use  must  not  interfere  with  his  use.  The  appro- 
priator's  right  extends  to  the  head  of  the  stream  and  its  branches 
to  the  extent  that  no  later  appropriation  can  be  made  or  changes 
be  effected,  to  his  disadvantage. 

Preference  is  given  to  no  appropriation  for  any  particular  use, 
except  in  some  States,  where  during  periods  of  drouth,  domestic 
uses  must  be  supplied  first,  irrigation  next,  and  then  the  other 
needs.  Appropriation  is  based  on  the  intention  to  use  water 
for  a  beneficial  purpose,  consequently  the  appropriator  need  not 
be  the  owner  or  user  of  land.  Married  women,  minors,  aliens, 
individuals,  and  companies  may  make  appropriations.  The 
rights  of  an  appropriator  begin  where  he  takes  his  water  from 
the  natural  stream  and  end  where  he  returns  it  to  a  natural 
stream.  He  may  change  these  points  of  diversion  and  discharge, 
provided  he  does  not  interfere  with  any  rights  obtained  by 
others  before  he  makes  his  change.  Those  who  take  the  waste 
or  discharge  of  an  appropriator  before  it  has  reached  a  natural 
stream,  have  no  right  to  object  to  the  change  in  the  place  of  dis 
charge.  The  appropriator  having  diverted  water  from  a  natural 
stream,  may  make  use  of  a  watercourse  or  natural  channel  as 
an  intermediate  link  in  his  ditch  system  required  to  get  the 
water  to  the  place  of  use.  An  appropriation  of  more  than  is 
used,  does  not  give  any  right  to  the  unused  surplus.  A  surplus 
is  always  open  to  location  and  appropriation,  consequently  no 
sale  of  it  can  be  made  under  usual  conditions. 

The  States  that  have  adopted  the  dual  system  of  the  law  of 
appropriation  and  the  common  law  of  riparian  rights  working 
side  by  side,  a  system  known  as  the  'California  system',  are 


170  MINING  LAW 

California,  Montana,  North  Dakota,  South  Dakota,  and  Wash 
ington.  Oregon  recognizes  riparian  rights  obtained  prior  to  1909, 
but  at  present  only  appropriated  rights  can  be  initiated.  In 
these  States  having  the  'California  system',  appropriation  may 
be  made  subject  to  prior  appropriation  and  riparian  rights.  As 
the  United  States  is  the  owner  of  the  public  land  and  primarily 
of  the  water  upon  its  land,  and  chooses  to  allow  appropriations 
of  water  upon  its  land,  the  patentee  of  public  land  acquires  the 
riparian  rights  that  go  with  it  (where  they  are  recognized)  sub 
ject  to  all  prior  appropriations,  but  no  future  appropriations  dis 
advantageous  to  his  riparian  rights  can  be  made  over  his  pro 
test,  though  the  surplus  may  be  appropriated. 

In  the  States  of  Arizona,  Colorado,  Idaho,  Nevada,  New  Mexico, 
Oregon  (except  those  initiated  prior  to  1909),  Utah,  and  Wyo 
ming,  riparian  rights  are  not  recognized,  and  the  only  way  the 
rights  to  use  water  may  be  acquired,  whether  upon  riparian 
land  or  otherwise,  is  by  appropriation.  This  has  been  called  the 
'Colorado  system'. 

A  riparian  owner  may  make  an  appropriation  upon  his  own 
or  public  land,  and  may  use  water  under  combined  right  of  ap 
propriation  and  riparian  ownership,  if  he  does  so  without  waste. 
Riparian  rights  are  attached  to  lakes  and  ponds,  and  undoubt 
edly  the  law  of  appropriation  also  applies  to  these. 

The  law  of  appropriation  was  made  for  water  in  surface  water 
courses.  To  come  under  the  head  of  surface  watercourse,  the 
water  must  have  a  tendency  to  flow  fairly  regularly.  The  quan 
tity  that  flows  is  immaterial.  A  flowing  well  may  be  driven  or  a 
spring  cleaned  out,  and  if  the  water  can  be  made  to  flow  into  a 
ditch  or  pipe,  the  flow  may  be  appropriated.  Water  flowing  un 
derground  can  be  appropriated,  and  subsequent  claimants  or 
land  owners  can  be  prevented  from  diverting  the  water  by  wells 
or  tunnels.  It  is  not  entirely  clear  that  percolating  underground 
waters,  not  flowing  in  an  underground  stream,  can  be  appro 
priated,  but  decisions  have  been  rendered  to  that  effect  and  there 
is  every  reason  to  believe  they  can  and  that  a  spring  or  well 
without  a  surface  flow  can  be  appropriated  on  public  land,  but 
not  on  private  land  unless  by  the  permission  of  the  land  owner. 
Sections  2339  and  2340  of  the  Revised  Statutes  (quoted  at  the 


WATER  APPROPRIATION  171 

beginning  of  this  chapter)  would  certainly  sanction  this  unless 
it  was  against  local  rules  and  customs  and  State  statutes.  This 
view  is  strengthened  by  the  fact  that  water  upon  public  land  is, 
like  the  land,  the  property  of  the  Government,  even  though  the 
Government  by  the  implied  and  written  terms  of  the  Statutes 
quoted  allows  it  to  be  disposed  of  under  State  jurisdiction  as  a 
part  of  the  police  powers  of  the  State. 

A  ditch  or  reservoir  may  be  placed  upon  public  land  for  the 
purpose  of  using  water  as  provided  for  in  the  Statutes  quoted. 
When  the  land  passes  into  private  ownership,  the  land  owner 
must  respect  this  easement  over  his  land,  but  the  ditch  owner 
does  not  own  the  land  occupied  by  his  ditch;  he  owns  only  the 
rights  to  use  and  maintain  the  ditch,  and  can  not  enlarge  this 
right  to  change  the  position  of  his  ditch,  except  by  permission 
of  the  land  owner.  The  ditch  may  be  abandoned  without  aban 
doning  the  right  to  the  water. 

Concerning  the  use  of  water  under  the  specific  conditions  at 
tached  to  mining,  certain  things  are  to  be  noted.  By  locating, 
rights  very  similar,  if  not  equal,  to  those  given  by  a  patent  are 
acquired;  consequently,  where  riparian  rights  are  recognized,  a 
located  or  patented  claim  has  a  riparian  right  to  use  the  water 
flowing  through  its  ground.  This  right  is  not  as  conclusive  -as 
might  be  wished  for,  and  consequently  an  appropriation  should 
always  be  made.  Where  it  is  sought  to  divert  the  water  off  the 
claim  having  riparian  rights,  an  appropriation  must  be  made. 
In  those  States  where  riparian  rights  are  not  recognized,  an 
appropriation  must  be  made.  In  general,  very  little  reliance 
should  be  placed  upon  the  riparian  rights  of  a  mining  claim. 
Where  an  unappropriated  flowing  spring  or  well  is  upon  a  claim, 
under  riparian  rights  the  claim  owner  also  owns  the  water,  but 
where  appropriation  only  is  recognized,  an  appropriation  of  the 
flow  at  the  point  it  leaves  the  ground  of  the  claim  owner  may  be 
made  by  a  stranger.  What  effect  such  an  appropriation  may 
have  on  the  claim  or  land  owner's  use  of  the  water  flowing  from 
the  spring  or  well  is  not  clear;  the  safe  course  is  to  make  an 
appropriation  of  the  water  naturally  arising  on  one's  own  ground. 
Flowing  water  that  develops  naturally  or  is  developed  artificially 
after  patent  is  obtained  from  the  Government,  is  private  property 


172  MINING  LAW 

and  cannot  be  appropriated.  Such  water  may  come  from  the 
driving  of  wells,  opening  up  new  springs,  driving  tunnels,  or 
from  ponds  arising  naturally.  The  surplus  of  such  water  as  it 
leaves  the  private  land  may  be  used  and  appropriated,  but  no 
real  right  is  obtained,  for  the  land  owner  may  cut  off  or  divert 
the  flow  at  his  pleasure. 

A  mining  location  containing  a  spring  or  well  without  a  sur 
face  flow  and  that  has  not  been  appropriated  before  the  location, 
owns  the  spring  or  well,  but  such  locations  are  precarious  unless 
containing  a  mineral  discovery  and  a  showing  can  be  made  that 
it  was  taken  up  in  good  faith  for  the  mineral  therein  and  not 
to  control  water.  A  spring  or  well  cannot  be  controlled  by  a 
millsite  location.  The  claimant's  possession  may  possibly  re 
main  unquestioned  while  holding  by  locating  or  possessory  right, 
but  the  millsite  cannot  be  patented  unless  used  for  some  mill- 
site  purpose,  for  the  Land  Department  has  repeatedly  said  that 
a  use  of  the  water  is  not  such  a  use  as  to  entitle  a  millsite  loca 
tion  to  be  patented;  holding  that  water  rights,  including  the 
necessary  dams,  ditches,  etc.,  are  protected  by  the  two  Statutes 
quoted  at  the  beginning  of  this  chapter,  and  that  what  is  essen 
tial,  is  not  a  use  of  the  water  but  a  use  of  the  land.  Following 
tnis  principle,  patents  have  been  refused  upon  millsite  claims 
used  for  no  other  purpose  than  to  contain  a  dam  for  collecting 
and  storing  water,  while  they  have  been  allowed  where  tanks 
were  placed  on  the  ground  for  storage  or  pumping  plants  were 
installed.  From  the  foregoing,  it  is  deduced  that  a  spring  or 
well  without  a  surface  flow  and  upon  public  land  may  be  ap 
propriated  without  locating  the  land,  if  the  water  can  be  put  to 
some  beneficial  use,  such  as  domestic  purposes,  watering  stock, 
or  milling  ore.  In  case  of  the  ground  not  being  subject  to  entry 
as  a  lode  or  placer  claim,  if  it  can  be  put  to  some  millsite  pur 
pose,  such  as  to  contain  a  living  cabin,  corral,  pumping  plant, 
or  similar,  it  should  be  located  as  a  millsite,  which  should  be 
sufficient  to  hold  the  water,  but  for  the  purpose  of  further  safety, 
an  appropriation  should  also  be  made.  If  the  water  is  upon 
surveyed  and  nonmineral  ground,  the  land  may  be  secured 
through  land  scrip,  but  this  would  be  a  rather  expensive  method 
in  some  cases. 


WATER  APPROPRIATION  173 

The  method  of  appropriation  in  Arizona,  California,  Montana, 
and  Washington  is  similar.  That  of  California  will  be  given  as 
the  type  case.  In  these  States  an  appropriation  of  water  may  be 
made  by  diverting  it  for  some  useful  purpose  without  any  notice, 
the  appropriation  being  good  from  the  time  of  diversion,  but  by 
complying  with  the  statutory  requirements  of  giving  notice,  etc., 
the  rights  date  from  time  of  giving  notice.  The  method  in  Cali 
fornia  is  to  place  at  the  point  where  it  is  intended  to  divert  the 
water,  a  notice  stating  the  amount  of  -water  to  be  taken,  the 
place  where  it  is  to  be  used,  the  purpose  for  which  it  is  to  be 
used,  and  the  means  by  which  the  diversion  is  to  be  made — ditch, 
flume,  or  pipe.  This  notice  must  be  recorded.  Within  sixty  days 
of  posting  the  notice,  work  must  begin  and  it  must  be  carried  on 
with  due  diligence  until  the  means  of  diversion  is  completed. 
The  completion  of  the  means  of  diversion — the  ditch,  flume,  or 
pipe — completes  the  water  right;  but  if  the  actual  application 
of  the  water  is  not  made  within  a  reasonable  time  the  water 
right  is  lost.  Under  the  above  conditions,  the  right  dates  back 
to  the  time  of  posting  notice,  but  if  the  notice  is  not  posted  and 
recorded,  the  work  not  begun  within  sixty  days,  or  not  carried 
forward  with  due  diligence,  the  right  does  not  relate  back  to 
the  posting  of  notice.  In  such  an  event  it  only  begins  on  the 
completion  of  the  work.  Consequently,  where  the  requirements 
have  not  been  complied  with,  any  other  appropriation  made  be 
fore  the  completion  of  the  work  and  carried  forward  as  pre 
scribed,  becomes  the  prior  appropriation,  even  though  completed 
after  the  defaulting  appropriation. 

The  failure  to  make  use  of  the  water  of  an  appropriation  for  a 
beneficial  purpose  in  California  for  five  years  .is  held  to  constitute 
a  forfeiture  of  the  right.  In  other  States  the  period  varies  from 
two  years  up,  there  being  no  specific  time  in  many.  Five  years 
use  in  California  of  the  water  of  a  prior  appropriation  by  a  use 
adverse  to  and  without  the  consent  of  the  prior  appropriation 
vests  a  right  in  the  new  claimant.  In  a  similar  way  riparian 
rights  may  be  lost  through  an  adverse  and  unprotested  appro 
priation. 

In  Colorado,  Idaho,  Nevada,  New  Mexico,  North  Dakota,  Ore 
gon,  South  Dakota,  Utah,  and  Wyoming  the  procedure  is  some- 


174  MINING  LAW 

what  different  from  that  in  California,  and  requires  an  applica 
tion  to  the  State  engineer,  who  issues  preliminary  and  final 
certificates  and  examines  the  appropriation.  The  procedure  in 
these  States  has  been  developed  primarily  to  meet  the  conditions 
under  which  irrigation  is  carried  out.  The  following  is  a  digest 
of  the  requirements  in  the  different  States.  Those  expecting  to 
make  appropriations  in  the  States  requiring  application  to  the 
State  engineer,  should  communicate  with  him  and  ask  for  forms, 
instructions,  and  a  copy  of  the  State  statutes  governing  water 
appropriation. 

ARIZONA. — Riparian  rights  are  not  recognized.  The  appropri- 
ator  posts  a  notice  at  the  place  of  diversion,  stating  the  amount 
appropriated,  a  description  of  the  necessary  works  to  be  built, 
and  the  terminal  point.  A  copy  of  the  notice  must  be  recorded 
in  each  county  through  which  the  works  run  and  in  the  office 
of  the  Secretary  of  State.  Work  must  be  commenced  within 
reasonable  time  and  carried  on  with  reasonable  diligence. 

CALIFORNIA. — Riparian  rights  are  recognized  and  upheld.  A 
notice  of  appropriation  must  be  posted  at  the  proposed  point 
of  diversion,  which  shall  state  the  amount  of  water  claimed, 
the  purpose  for  which  it  is  to  be  used,  the  place  at  which  it 
is  to  be  used,  and  the  means  by  which  it  is  to  be  diverted.  A 
copy  of  the  notice  must  be  filed  with  the  county  recorder  within 
ten  days  after  posting.  Work  must  commence  within  sixty 
days  after  posting  notice  and  continue  with  due  diligence  until 
completion. 

COLORADO. — Riparian  rights  are  not  recognized.  Appropriation 
is  made  by  filing  application  with  the  State  engineer  within 
sixty  days  after  beginning  work.  The  certificate  of  approval 
of  the  State  engineer  must  be  filed  with  the  county  clerk  and 
recorder.  Due  diligence  must  be  used  in  construction. 

IDAHO. — Riparian  rights  are  not  recognized.  Priority  of  right 
dates  from  the  original  application  filed  with  the  State  engineer 
for  a  permit  to  construct  the  necessary  works  before  commenc 
ing  such  work.  One-fifth  of  the  construction  work  must  be 
performed  within  one-half  the  allotted  time,  which  is  usually 
five  years,  and  actual  application  of  the  water  must  be  made 
within  four  years  thereafter. 


WATER  APPROPRIATION  175 

MONTANA. — Riparian  rights  exist  and  are  recognized.  An 
appropriation  is  made  by  posting  a  notice  in  writing  at  a 
conspicuous  place  at  the  intended  point  of  diversion,  stating 
amount  claimed,  purpose  of  appropriation,  place  of  intended 
use,  means  of  diversion,  date  of  appropriation,  and  name  of 
appropriates  Within  twenty  days  file  with  the  county  clerk 
a  notice  of  appropriation  containing  in  addition  the  name  or 
a  description  of  the  stream,  description  of  the  point  of  diver 
sion,  and  reference  to  a  natural  object  or  permanent  monument. 
Notice  must  be  verified  as  an  affidavit.  Work  must  be  com 
menced  within  forty  days  of  posting  notice  and  must  be  prose 
cuted  with  reasonable  diligence  to  completion. 

NEVADA. — Riparian  rights  are  not  recognized.  Priority  of 
appropriation  dates  from  filing  an  application  with  the  State 
engineer  before  commencement  of  work.  After  approval  and 
publication  of  the  notice  in  some  newspaper  by  the  State  engi 
neer,  a  certificate  is  issued  which  must  be  filed  within  thirty 
days  of  its  issuance  both  in  the  county  where  water  is  diverted 
and  in  county  where  used. 

NEW  MEXICO. — Riparian  rights  are  not  recognized.  Appropria 
tion  is  made  by  filing  an  application  with  the  State  engineer 
before  commencing  work.  Publication  of  notice  of  appropriation 
is  required  after  its  approval  by  the  State  engineer.  One-fifth 
of  the  construction  work  must  be  completed  within  one-half  of 
the  allotted  time,  which  is  usually  five  years,  and  water  must 
be  applied  usually  within  four  years  thereafter.  Final  certifi 
cate  issues  upon  inspection  after  completion  of  work.  All  per 
mits,  decrees,  and  documents  regarding  water  rights  must  be 
filed  in  the  office  of  the  probate  clerk  and  ex-ojftcio  recorder 
of  the  county  in  which  the  works  are  situated. 

NORTH  DAKOTA. — Riparian  rights  exist  and  are  recognized. 
Priority  of  appropriation  dates  from  filing  application  with  the 
State  engineer  before  beginning  work.  Approval  of  application 
after  its  publication  constitutes  a  permit.  One-fifth  of  the  work 
must  be  completed  in  one-half  of  the  time  allowed,  and  the 
completion  must  usually  be  within  five  years.  Actual  applica 
tion  of  the  water  to  some  useful  purpose  must  usually  follow 
within  four  years.  Actual  application  of  water  and  inspection 


176  MINING  LAW 

are  necessary  for  the  issuance  of  final  certificate.  Non-use  for 
three  years  causes  a  loss  of  the  right. 

OREGON. — Riparian  rights  obtained  prior  to  February  1909  are 
recognized  and  upheld;  since  that  date,  water  rights  can  be 
obtained  by  appropriation  only.  Appropriation  is  made  by  appli 
cation  to  the  State  engineer  before  beginning  work.  Work 
may  commence  on  approval  of  application.  Actual  construction 
work  must  commence  within  one  year  from  date  of  approval, 
be  carried  on  with  reasonable  diligence,  and  usually  be  com 
pleted  within  five  years. 

SOUTH  DAKOTA. — Riparian  rights  are  recognized  and  upheld. 
Priority  of  appropriation  dates  from  filing  of  application  with 
State  engineer  before  beginning  work.  After  publication  and 
approval  of  application,  work  must  be  prosecuted  with  dili 
gence.  One-fifth  of  the  work  must  be  completed  within  one-half 
of  the  allotted  time,  which  is  usually  five  years.  Actual  appli: 
cation  and  use  of  the  water  must  follow  completion,  usually 
within  four  years.  Final  certificate  issues  upon  notice  and 
examination  of  the  actual  use.  Non-use  for  two  years  causes 
a  forfeiture  of  the  right. 

UTAH. — Riparian  rights  are  not  recognized.  Priority  of  appro 
priation  dates  from  receiving  the  application  in  the  office  of 
the  State  engineer,  which  must  be  before  commencing  the  work. 
After  publication  and  approval,  work  may  proceed,  commencing 
within  six  months  after  approval,  and  usually  requiring  com 
pletion  within  five  years.  One-fifth  of  the  work  must  be  per 
formed  in  one-half  of  the  allotted  time.  After  completion  of 
the  work  and  use  of  the  water  is  made,  a  final  certificate  is 
issued,  which  must  be  recorded  in  the  county  where  the  water 
is  diverted.  Non-use  for  seven  years  causes  a  loss  of  the  right. 

WASHINGTON. — Riparian  rights  exist  and  are  recognized.  Ap 
propriation  is  made  by  placing  at  the  intended  point  of  diver 
sion,  a  notice  stating  amount  of  water  appropriated,  purpose  of 
appropriation,  place  of  intended  use,  and  means  of  storage  or 
diversion.  Record  a  copy  in  the  office  of  the  county  recorder 
within  ten  days  after  posting.  Work  must  commence  within 
three  months  from  posting  notice,  if  said  use  is  by  storage,  or 


WATER  APPROPRIATION  177 

within  six  months,  if  the  use  is  by  diversion.     Work  must  be 
diligently   prosecuted   to   completion. 

WYOMING. — Riparian  rights  are  not  recognized.  Priority  of 
appropriation  dates  from  filing  an  application  with  the  State 
engineer  before  commencing  work.  If  application  is  approved, 
work  may  proceed,  one  year  being  usually  allowed  in  which  to 
begin  work.  Five  years  is  usually  allowed  to  complete  the  work. 
Final  certificate  issues  upon  the  perfection  of  the  appropriation, 
which  must  be  recorded  in  the  office  of  the  county  clerk. 


APPENDIX  A 

Digest  of  State  Statutes  Relative  to  Mineral  Locations 

ALASKA 

Notices  of  location  of  mining  claims  shall  be  filed  for  record 
within  ninety  days  from  date  of  discovery.  Proof  of  labor  may 
be  made  and  filed,  not  later  than  90  days  after  close  of  year 
in  which  the  annual  labor  is'  to  be  performed.  Such  proof 
is  prima  facie  evidence  of  the  performance  of  the  work.  If  the 
proof  is  not  filed  within  the  time  fixed,  the  burden  of  proof 
is  upon  the  claim  owner  to  show  that  such  work  has  been  per 
formed.  Adverse  claims  against  an  application  for  patent  may 
be  filed  at  any.  time  during  the  60  days  of  publication  or  within 
eight  months  thereafter,  and  the  adverse  suits  may  be  insti 
tuted  at  any  time  within  60  days  after  the  filing  of  the  adverse 
claims  in  the  local  land  office. 

ARIZONA 

LODE  LOCATIONS 

Erect  at  or  contiguous  to  the  point  of  discovery,  a  conspic 
uous  monument  of  stones  not  less  than  three  feet  in  height  or 
a  post  at  least  four  feet  above  ground.  Post  on  or  at  the 
discovery  monument,  a  location  notice  containing:  Name  of 
claim;  name  or  names  of  locators;  date  of  location;  length  and 
width  of  claim,  and  distance  from  discovery  to  each  end  of 
claim;  general  course  of  claim;  locate  claim  by  reference  to 
a  natural  object  or  permanent  monument.  Ninety  days  is  al 
lowed  from  time  of  location  to  perform  the  following:  Monu 
ment  claim;  record  copy  of  location  notice;  sink  discovery  shaft. 
Boundaries  shall  be  marked  by  six  posts,  projecting  at  least 
four  feet  above  surface,  or  stone  monuments  at  least  three  feet 
high,  to  be  placed  at  each  corner  and  centre  of  each  end-line. 
The  discovery  shaft  shall  be  at  least  eight  feet  deep  from 

179 


180  MINING  LAW 

lowest  part  of  rim  of  shaft  at  surface,  and  deeper,  if  necessary, 
to  show  mineral  in  place.  An  open-cut,  adit,  or  tunnel,  equal 
in  amount  to  a  shaft  eight  feet  deep,  four  feet  wide,  and  six 
feet  long,  which  shall  cut  a  lode  or  mineral  in  place  at  a  depth 
of  ten  feet  (the  statute  probably  purposed  eight  but  now  reads 
ten  feet)  from  the  surface,  shall  be  equivalent  to  the  discovery 
shaft.  Proof  of  labor  may  be  made  and  recorded  within  three 
months  after  expiration  of  the  period  fixed  for  the  performance 
of  annual  labor  or  making  of  improvemnts  on  any  mining  claim, 
and  shall  be  prima  facie  evidence  of  the  performance  of  such 
labor  and  improvements. 

PLACER   LOCATIONS 

The  locator  of  a  placer-mining  claim  shall  locate  his  claim 
by  posting  a  location  notice  thereon,  containing  the  name  of 
the  claim,  name  or  names  of  the  locators,  date  of  location, 
number  of  acres  claimed,  and  reference  to  some  natural  object 
or  permanent  monument.  Erect  at  each  angle  of  the  claim  a 
post  four  inches  by  four  and  one-half  feet  in  length,  set  one 
foot  in  the  ground,  and  surrounded  by  a  mound  of  stone  and 
earth,  or  erect  a  mound  of  stone  four  feet  in  diameter  at  the 
base  and  three  feet  high.  Within  60  days  after  location,  record 
a  copy  of  the  location  notice. 

CALIFORNIA 

For  many  years  California  had  no  State  mining  laws,  being 
governed  solely  by  the  Federal  Statutes  and  regulations  and 
such  customs  and  rules  of  the  local  mining  districts  as  still 
remained  in  force.  However,  in  1909  a  mining  code  very  similar 
to  those  of  the  other  mining  States,  except  not  requiring  any 
discovery  work,  was  adopted  and  is  now  in  force.  ' 

LODE   LOCATIONS 

Any  person,  a  citizen  of  the  United  States,  or  who  has  de 
clared  his  intention  to  become  such,  may  locate  a  claim  upon 
a  lode  or  vein  by  defining  the  boundaries  of  his  claim  so  that 
they  may  be  readily  traced,  and  by  posting  at  the  point  of 
discovery  a  notice  of  location  which  must  contain:  Name  of 


STATE  STATUTES  181 

the  lode  or  claim;  name  of  the  locator  or  locators;  length  along 
vein  each  way  from  discovery;  width  on  each  side  of  centre  of 
vein;  general  course  of  vein  or  lode;  date  of  location;  refer 
ence  to  natural  object  or  permanent  monument.  Within  thirty 
days  after  posting  notice  of  location  upon  a  lode  claim,  record 
a  true  copy  thereof  in  the  office  of  the  recorder  of  the  county 
in  which  such  claim  lies.  The  failure  or  neglect  of  any  locator 
of  a  mining  claim  to  perform  development  work  of  the  char 
acter,  in  the  manner,  and  within  the  time  required  by  the  laws 
of  the  United  States,  shall  disqualify  such  locators  from  re 
locating  the  ground  embraced  in  the  original  location  or  mining 
claim  or  any  part  thereof  under  the  mining  laws,  within  three 
years  after  the  date  of  his  original  location,  and  any  attempted 
location  thereof  by  any  of  the  original  locators  shall  render 
such  location  void.  The  provisions  of  this  act  (the  State  mining 
code)  shall  not  in  any  manner  be  construed  as  affecting  or 
abolishing  any  mining  district  or  the  rules  and  regulations 
thereof,  within  the  State  of  California.  Proof  of  labor  shall 
be  made  and  filed  within  30  days  after  the  time  limit  for  per 
forming  such  labor  or  improvements,  and  shall  be  prima  facie 
evidence  of  the  performance  of  such  labor  or  improvements. 
The  location  of  a  tunnel  right  or  location  shall  be  made  by 
establishing  the  boundary  lines  of  the  tunnel  by  stakes  or 
monuments  placed  along  the  lines  at  an  interval  of  not  more 
than  600  ft.  from  the  face  or  point  of  commencement  of  the 
tunnel  to  the  terminus  of  3000  ft.  therefrom.  And  by  posting 
a  notice  of  location  at  the  face  or  point  of  commencement  of 
the  tunnel,  a  true  copy  of  which  must  be  recorded  within  thirty 
days  after  posting.  Said  notice  to  contain:  Name  of  locator  or 
locators;  date  of  location;  proposed  course  or  direction  of  the 
tunnel;  description  of  tunnel  with  reference  to  natural  object 
or  permanent  monument.  A  millsite  not  exceeding  five  acres 
may  be  located  in  the  same  manner  as  a  placer  claim.  A  true 
copy  of  the  location  notice  must  be  recorded  within  thirty  days 
of  date  of  location. 

PLACER   LOCATIONS 

The  location  of  a  placer  claim  shall  be  made  by  posting  there- 


182  MINING  LAW 

on,  upon  a  tree,  rock  in  place,  stone,  post,  or  monument,  a  notice 
of  location,  and  recording  a  true  copy  of  the  same  within  30  days 
after  posting.  Said  notice  to  contain:  Name  of  claim;  name 
of  locator  or  locators;  date  of  location;  number  of  feet  or  acres 
claimed;  reference  to  natural  object  or  permanent  monument. 
The  boundaries  shall  be  marked  so  that  they  may  be  readily 
traced,  but  where  the  United  States  survey  has  been  extended 
over  the  land  embraced  in  the  location,  the  claim  may  be  taken 
by  legal  subdivisions  and  no  other  reference  than  those  of  said 
survey  shall  be  required  and  the  boundaries  of  a  claim  so  located 
and  described  need  not  be  staked  or  monumented.  The  descrip 
tion  by  legal  subdivisions  shall  be  deemed  the  equivalent  of 
marking. 

COLORADO 

LODE   LOCATIONS 

The  width  of  lode  claims  located  in  Gilpin,  Clear  Creek, 
Boulder,  and  Summit  counties  is  limited  to  75  ft.  on  each  side 
of  centre  of  vein.  In  the  remaining  counties  the  width  is 
limited  to  150  ft.  on  each  side  of  centre  of  vein.  Post  at  point 
of  discovery  on  the  surface,  before  filing  location  certificate,  a 
notice  containing  name  of  lode,  name  of  locator,  and  date  of 
discovery.  Mark  surface  boundaries,  before  filing  location  cer 
tificate,  by  six  posts  hewed  or  marked  on  the  side  or  sides 
toward  the  claim,  sunk  in  the  ground  or  in  a  pile  of  stones,  and 
placed  at  each  corner  and  centre  of  each  side-line  of  the  claim. 
Sixty  days  from  uncovering  or  disclosing  a  lode  and  before 
filing  location  certificate  are  allowed  in  which  to  sink  a  dis 
covery  shaft  upon  the  lode  to  a  depth  of  at  least  ten  feet  from 
the  lowest  part  of  the  rim  of  such  shaft  on  the  surface,  and 
deeper,  if  necessary,  to  show  a  well  defined  crevice.  An  open- 
cut,  cross-cut,  or  tunnel,  which  shall  cut  a  lode  at  the  depth  of 
ten  feet  below  the  surface,  or  an  adit  driven  at  least  ten  feet  in 
along  the  lode,  shall  be  equivalent  to  a  discovery  shaft.  Within 
three  months  from  date  of  discovery,  record  a  location  cer 
tificate  containing:  Name  of  lode;  name  or  names  of  locators; 
date  of  location;  length  of  claim  on  each  side  of  discovery 
shaft;  general  course  of  lode.  Proof  of  labor  may  be  made  and 


STATE  STATUTES  183 

recorded  within  six  months  after  any  set  time  or  annual  period 
allowed  for  the  performance  of  labor  or  making  improvements 
upon  any  lode^or  placer  claim,  and  shall  be  prima  facie  evidence 
of  the  performance  of  such  labor  or  improvements. 

PLACER   LOCATIONS 

Post  upon  the  claim,  before  filing  location  certificate,  a  notice 
containing  the  name  of  the  claim,  the  name  of  the  locator,  the 
date  of  discovery,  and  the  number  of  feet  or  acres  claimed. 
Mark  boundaries,  before  filing  location  certificate,  with  posts 
sunk  into  the  ground  at  each  angle  of  the  claim.  Within  30 
days  from  date  of  discovery,  record  a  location  certificate  con 
taining:  Name  of  claim  and  designated  as  a  placer  claim;  name 
or  names  of  locators;  date  of  location;  number  of  acres  or  feet 
claimed;  reference  to  natural  object  or  permanent  monument. 

IDAHO 

LODE    LOCATIONS 

At  time  of  making  discovery,  erect  a  monument  at  place  of 
discovery,  upon  which  place  the  name  of  locator,  name  of  claim, 
date  of  discovery,  and  length  of  vein  claimed  each  way  from 
monument.  Within  ten  days  from  discovery,  mark  boundaries 
by  establishing  at  each  corner  and  at  any  angle  in  the  side 
lines,  a  monument  marked  with  the  name  of  the  claim  and  the 
corner  or  angle.  Monuments  must  be  at  least  four  feet  high 
above  the  ground.  Posts  or  trees  used  as  such  must  be  hewn 
and  marked  upon  side  facing  toward  the  discovery,  and  must 
be  at  least  four  inches  square  or  in  diameter.  At  time  of  mark 
ing  boundaries,  post  at  discovery  monument  a  notice  of  location, 
a  substantial  copy  of  which  must  be  recorded  within  ninety 
days  after  location;  notice  to  contain:  Name  of  locator;  name 
of  claim;  date  of  discovery;  direction  and  distance  claimed  along 
ledge  from  the  discovery;  distance  claimed  on  each  side  of 
middle  of  ledge;  distance  and  direction  from  the  discovery 
monument  to  such  natural  object  or  permanent  monument,  if 
any  such  there  be,  as  will  fix  and  describe,  in  the  notice  itself, 
the  location  of  the  claim;  name  of  mining  district,  county,  and 
State.  There  must  be  filed  for  record  with  the  location  certifi- 


184  MINING  LAW 

cate  of  all  quartz  and  placer  claims,  the  affidavit  of  one  of  the 
locators,  stating  that  he  is  a  citizen  of  the  United  States  or  has 
declared  his  intention  to  become  such,  that  he  is  acquainted  with 
the  ground  embraced  by  the  location,  that  no  part  of  the  ground 
has  any  valid  adverse  claim  upon  it,  and  that  the  discovery  work 
has  been  performed.  Sixty  days  after  location,  is  the  time 
allowed  to  sink  a  shaft  upon  the  lode  to  a  depth  of  at  least  ten 
feet  from  the  lowest  part  of  the  rim  of  such  shaft  at  the  surface, 
and  of  not  less  than  sixteen  square  feet  area.  Any  excavation 
which  shall  cut  such  vein  ten  feet  from  the  lowest  part  of  the 
rim  of  such  shaft  at  the  surface,  and  which  shall  measure  160 
cu.  ft.  in  extent  shall  be  sufficient.  Proof  of  labor  may  be  made 
and  recorded  within  sixty  days  after  any  time  set  or  period 
allowed  for  the  performance  of  labor  and  improvements  upon 
any  lode  or  placer  claim.  Such  proof  shall  be  prima  facie  evi 
dence  of  the  performance  of  such  labor.  Failure  to  file  such 
proof  shall  be  considered  prima  facie  evidence  that  such  labor 
has  not  been  done. 

PLACER   LOCATIONS 

At  time  of  making  the  location,  place  a  substantial  post  or 
monument  as  required  in  the  location  of  quartz  claims  at  each 
corner  of  location.  Post  on  a  location  corner,  a  notice  of  loca 
tion  containing:  Date  of  location;  name  of  locator;  name  of 
claim;  dimension  of  claim;  mining  district  and  county;  distance 
and  direction  from  said  monument  to  such  natural  object  or 
permanent  monument,  if  any  such  there  be,  as  will  fix  and  de 
scribe,  in  the  notice  itself,  the  location  of  the  claim.  Within 
thirty  days  after  the  location,  a  substantial  copy  of  the  location 
notice  must  be  filed  for  record,  including  the  affidavit,  as  is  re 
quired  in  the  case  of  a  quartz  claim.  Fifteen  days  are  allowed 
after  making  the  location,  to  make  an  excavation  upon  the  claim 
of  not  less  than  one  hundred  cubic  feet,  for  the  purpose  of  pros 
pecting  the  same. 

MONTANA 

Post  at  point  of  discovery,  a  notice  of  location  containing  the 
name  of  the  claim,  the  name  or  names  of  the  locators,  the  date 
of  location  (which  shall  be  the  date  of  posting  such  notice),  and 


STATE  STATUTES  185 

the  approximate  dimensions  of  the  claim.  Thirty  days  following 
the  location  are  allowed  for  monumenting;  a  monument  to  be 
placed  at  each  angle  and  corner  of  the  claim.  The  following 
kinds  of  monuments  are  prescribed,  which  must  be  marked  with 
the  name  of  the  claim  and  the  designation  of  the  corner:  A 
tree  eight  inches  or  more  in  diameter,  blazed  on  four  sides;  a 
post  at  least  four  inches  square  by  four  and  one-half  feet  in 
length,  set  one  foot  in  the  ground  and  surrounded  by  a  mound 
of  earth  and  stone  at  least  four  feet  in  diameter  and  two  feet 
high;  a  squared  stump,  the  equivalent  of  a  post  and  mound;  a 
stone  at  least  six  inches  square  by  eighteen  inches  in  length,  set 
two-thirds  of  its  length  in  the  ground,  with  a  mound  of  earth 
or  stone  alongside  at  least  four  feet  in  diameter  by  two  feet  in 
height;  a  boulder  at  least  three  feet  above  the  natural  surface 
of  the  ground  on  the  upper  side.  Within  sixty  days  after  post 
ing  notice  of  location,  record  a  certificate  of  location,  which 
must  be  verified  by  being  sworn  to  as  an  affidavit,  and  must  con 
tain  the  following:  Name  of  claim  or  lode;  name  or  names  of 
locators;  date  of  location;  reference  to  natural  object  or  per 
manent  monument.  If  a  lode  claim,  the  direction  and  distance 
claimed  along  the  lode  from  the  discovery  work,  also  width  on 
each  side  of  lode  must  be  noted;  if  a  placer  claim,  the  dimensions 
or  area  of  the  claim  and  the  location  of  the  discovery  work. 
The  locator  may,  at  his  option,  give  a  description  of  the  discovery 
work,  corner  monuments,  and  other  facts  connected  with  the 
location.  The  locator  within  60  days  of  posting  location  notice, 
shall  sink  a  discovery  shaft  upon  the  lode,  vein,  or  deposit  at 
or  near  the  point  of  discovery.  Such  shaft  to  be  sunk  to  the 
depth  of  at  least  ten  feet,  vertically,  below  the  lowest  part  of  the 
rim  of  such  shaft  at  the  surface,  or  deeper,  if  necessary,  to  dis 
close  the  vein  or  deposit  located.  The  cubical  contents  of  such 
shaft  shall  not  be  less  than  150  cu.  ft.  Any  cut  or  tunnel  which 
discloses  the  vein,  lode,  or  deposit  at  a  vertical  depth  of  at  least 
ten  feet  below  the  natural  surface  of  the  ground,  and  which 
constitutes  at  least  150  cu.  ft.  of  excavation,  shall  be  deemed 
the  equivalent  of  the  discovery  shaft.  Where  the  vein,  lode,  or 
deposit  is  exposed  at  less  than  ten  feet  depth,  any  deficiency  in 
the  depth  of  the  discovery  shaft,  cut,  or  tunnel  may  be  com- 


186  MINING  LAW 

pensated  for  by  any  horizontal  extension  of  such  working,  or 
part  of  the  discovery  work  may  be  done  elsewhere  upon  the 
claim,  but  at  least  75  cu.  ft.  of  excavation  shall  be  made  at  the 
point  of  discovery.  The  rights  of  any  relocator  of  any  abandoned 
or  forfeited  mining  claim  shall  date  from  the  posting  of  notice 
of  location,  and  while  he  is  duly  performing  the  acts  required 
by  law  to  perfect  his  location,  his  rights  shall  not  be  affected 
by  any  re-entry  or  resumption  of  work  by  the  former  locator  or 
claimant.  A  locator  or  claimant  may,  at  any  time,  relocate  his 
own  claim  for  any  purpose,  except  to  avoid  the  performance  of 
the  annual  labor  thereof.  Proof  of  labor  may  be  made  and 
recorded  within  twenty  days  after  completion  of  the  annual 
labor,  which  shall  be  prima  facie  evidence  of  the  facts  therein 
stated. 

NEVADA. 

LODE   LOCATIONS 

A  lode  may  be  located  by  a  citizen  of  the  United  States  or 
one  who  has  declared  his  intention  to  become  such,  by  posting 
a  notice  of  location  at  point  of  discovery,  which  notice  must 
contain  the  name  of  the  lode  or  claim,  the  name  or  names  of 
the  locators,  the  date  of  location,  the  number  of  feet  each  way 
from  discovery  along  the  vein,  the  width  on  each  side  of  the 
vein,  and  the  general  course  of  the  vein.  Twenty  days  from 
posting  of  location  notice,  are  allowed  for  monumenting.  The 
monuments  must  be  placed  at  each  corner  and  at  the  centre  of 
each  side-line.  The  monuments  may  consist  of:  A  blazed  and 
marked  stump,  not  less  than  four  inches  in  diameter,  nor  less 
than  three  feet  high;  a  rock  in  place,  capped  with  smaller  stones 
to  a  height  of  not  less  than  three  feet;  a  post  at  least  four  inches 
in  diameter  by  four  and  one-half  feet  in  length,  set  one  foot  in 
the  ground,  or  in  a  mound  of  earth  or  stone;  a  loose  stone  not 
less  than  six  inches  in  diameter  and  eighteen  inches  in  length, 
set  two-thirds  of  its  length  in  the  top  of  a  mound  of  earth  or 
stone,  four  feet  in  diameter  and  two  and  one-half  feet  in  height. 
All  trees,  posts,  or  rocks  used  as  monuments,  when  not  four 
feet  in  diameter  at  the  base,  shall  be  surrounded  by  a  mound  of 
earth  or  stone  four  feet  in  diameter  by  two  feet  high,  and  must 


STATE  STATUTES  187 

be  so  marked  as  to  designate  the  corners  of  the  claim  located. 
After  having  established  the  boundaries,  the  locator  may  file 
with  the  district  mining  recorder  or  in  the  absence  of  such  a 
recorder,  with  the  county  recorder,  a  preliminary  notice  of  loca 
tion  containing:  Name  of  lode;  number  of  feet  claimed  along 
lode;  date  of  location;  date  on  which  boundaries  were  com 
pleted;  name  of  locator  or  locators.  Within  ninety  days  of 
posting  the  location  notice,  the  location  certificate  shall  be  filed 
with  the  district  mining  recorder  and  the  county  recorder,  which 
must  contain:  Name  of  lode  or  vein;  name  or  names  of  locators; 
date  of  location;  reference  to  natural  object  or  permanent  monu 
ment;  length  along  vein  each  way  from  discovery;  width  on 
each  side  of  vein;  general  course  of  vein;  dimensions  and  loca 
tion  of  the  discovery  shaft  or  its  equivalent;  location  and  de 
scription  of  each  corner  with  the  markings  thereon.  Ninety 
days  from  posting  location  notice  are  allowed  to  sink  a  discovery 
shaft  four  feet  by  six  feet  to  a  depth  of  at  least  ten  feet  from 
the  lowest  part  of  the  rim  of  such  shaft  at  the  surface,  or  deeper, 
if  necessary,  to  show  by  such  work  a  lode  deposit  of  mineral  in 
place.  A  cut,  cross-cut,  or  tunnel,  which  cuts  the  lode  at  a 
depth  of  ten  feet  or  an  open-cut  along  said  ledge  or  lode,  equiva 
lent  in  size  to  a  shaft  four  feet  by  six  feet  by  ten  feet  deep,  is 
equivalent  to  a  discovery  shaft.  Proof  of  labor  may  be  made 
and  recorded  within  sixty  days  after  the  performance  of  labor 
or  improvements  as  required  by  law.  Such  proof  shall  be  prima 
facie  evidence  of  the  performance  of  such  labor  and  improve 
ments. 

Tb,e  locator  of  a  millsite  shall  mark  the  boundaries  in  the 
same  manner  as  provided  for  placer  claims,  and  shall  post  a 
notice  on  the  claim,  recording  a  similar  location  certificate  with 
in  thirty  days  from  date  of  location.  Notice  to  contain:  Name 
of  locator  or  locators;  name  of  vein  or  lode  claim,  or  mine,  of 
which  he  is  the  proprietor,  or  the  name  of  the  quartz  mill  or 
reduction  works  of  which  he  is  the  owner;  date  of  location; 
number  of  feet  or  acres  claimed;  reference  to  natural  object  or 
permanent  monument. 

The  locator  of  a  tunnel  site  shall  establish  the  boundary  lines 
of  the  tunnel  by  stakes  or  monuments  placed  along  such  lines  at 


188  MINING  LAW 

intervals  of  not  more  than  three  hundred  feet  from  the  face  or 
point  of  commencement  of  the  tunnel  to  the  terminus  of  the  three 
thousand  feet  therefrom.  The  stakes  or  monuments  shall  be  as 
provided  for  lode  or  placer  claims.  The  locator  of  a  tunnel  site 
shall  post  at  the  face  or  point  of  commencement  a  notice,  a 
similar  notice  to  be  recorded  within  60  days  of  date  of  location. 
The  notice  shall  contain:  Name  of  locator  or  locators;  date  of 
location;  proposed  course  or  direction  of  the  tunnel;  height  and 
width  of  tunnel;  position  and  character  of  boundary  monuments; 
reference  to  natural  object  or  permanent  monument. 

PLACER   LOCATIONS 

Post  upon  a  tree,  rock  in  place,  stone,  post,  or  monument,  a 
notice  of  location  containing  the  name  of  the  claim,  name  or 
names  of  the  locators,  date  of  location,  and  number  of  feet  or 
acres  claimed.  The  boundaries  and  location  point  must  be 
marked  in  the  same  manner  and  by  the  same  means  as  required 
by  the  State  laws  in  connection  with  lode  claims.  Where  the 
claim  is  taken  by  legal  subdivisions  upon  surveyed  land,  only 
the  location  point  need  be  marked  or  staked.  Ninety  days  from 
posting  of  notice  are  allowed  in  which  to  perform  twenty  dol 
lars  worth  of  improvements  upon  the  claim.  A  certificate  of 
location  must  be  recorded  with  the  district  mining  recorder  and 
the  county  recorder  within  90  days  of  location,  to  contain:  .Name 
of  claim  and  designated  as  a  placer;  name  or  names  of  locators; 
date  of  location;  number  of  feet  or  acres  claimed;  reference  to 
natural  object  or  permanent  monument;  kind,  amount,  and 
place  of  work  performed. 

NEW   MEXICO 

•    LODE   LOCATIONS 

Mark  boundaries  by  four  posts  or  monuments,  set  at  each  cor 
ner  of  claim.  Post  in  a  conspicuous  place  on  the  location  a  notice 
and  record  a  copy  of  the  same  within  three  months  after  post 
ing;  notice  to  contain:  Name  or  names  of  locators;  intention  to 
locate  mining  claim;  reference  to  natural  object  or  permanent 
monument.  Within  90  days  after  taking  possession,  sink  a  dis 
covery  shaft  to  a  depth  of  at  least  ten  feet  from  the  lowest  rim 


STATE  STATUTES  189 

of  such  shaft  at  the  surface,  exposing  mineral  in  place,  or  drive 
a  tunnel,  adit  or  open-cut  to  at  least  ten  feet  below  the  surface, 
exposing  mineral  in  place.  Proof  of  labor  may  be  made  and 
filed,  within  60  days  from  and  after  the  time  within  which 
the  assessment  work  required  by  law  to  be  done  shall  have 
been  performed,  and  shall  be  prima  facie  evidence  of  the  facts 
therein  stated.  Failure  to  file  proof  of  labor  will  throw  the 
burden  of  proof  on  the  claim  owner. 

PLACES   LOCATIONS 

At  the  time  of  making  location  of  any  placer  claim,  cause 
a  notice  of  such  location  to  be  placed  at  a  designated  corner 
of  the  claim  so  located.  Said  notice  shall  contain:  Name  of 
claim;  purpose  and  kind  of  material  for  which  the  claim  is 
located;  name  or  names  of  the  locators;  if  upon  surveyed  land, 
a  description  of  such  claim  by  legal  subdivisions;  if  upon  un- 
surveyed  land,  a  description  of  the  claim  by  metes  and  bounds, 
with  reference  to  some  known  object  or  permanent  monument. 
Each  corner  of  the  claim,  whether  upon  surveyed  or  unsur- 
veyed  land,  shall  be  marked  by  a  wooden  post  at  least  four 
feet  high,  or  by  a  substantial  stone  monument.  A  duplicate 
of  such  location  notice  shall  be  filed  and  recorded  in  the  office 
of  the  probate  clerk  of  the  county  wherein  the  land  is  located, 
within  90  days  after  such  location  is  made  and  such  notice 
placed  on  the  claim  as  before  provided;  prior  to  filing  such 
notice,  the  locator  or  locators  must  have  made  a  bona  fide  dis 
covery  of  the  mineral  or  material  claimed  in  said  notice,  or 
said  location  will  be  void  and  subject  to  relocation  by  others. 
Provided,  that  in  cases  where  lands  have  been  located  for  petro 
leum  oil  or  natural  gas,  the  locator  or  locators  shall  have  the 
time  from  the  date  of  the  location  to  the  end  of  the  calendar 
year  succeeding  that  in  which  the  location  is  made,  to  make 
a  discovery  of  petroleum  oil  or  natural  gas;  also,  that  when 
lands  have  been  located  for  petroleum  oil  or  natural  gas,  the 
locator  or  locators  shall  have  the  right  to  the  exclusive  pos 
session  and  occupancy  of  the  lands  embraced  in  said  location 
for  the  purpose  of  prospecting  for  petroleum  oil  or  natural 


190  MINING  LAW 

gas    during    the    period    of    time    provided    in    this    section    for 
making  a  discovery  of  petroleum  oil  or  natural  gas. 

NORTH   DAKOTA 

The  width  of  lode  claims  shall  not  exceed  150  feet  on  each 
side  of  the  centre  of  the  vein.  Post  at  point  of  discovery  on 
the  surface,  before  filing  location  notice,  a  notice  containing 
name  of  lode,  name  of  locators,  date  of  discovery,  number  of 
feet  in  length  on  each  side  of  discovery,  and  width  on  each 
side  of  lode.  The  boundaries  should  be  marked  before  filing 
location  certificate  by  eight  posts,  hewed  or  blazed  on  the  side 
facing  the  claim,  and  plainly  marked  with  the  name  of  lode 
and  corner,  end,  or  side  of  claim  that  they  respectively  rep 
resent,  and  set  in  ground  or  monument  of  stone.  One  post 
to  be  placed  at  each  corner,  one  at  the  centre  of  each  side-line, 
and  one  at  each  end  of  the  lode.  Within  60  days  from  date 
of  discovery,  record  a  location  notice  containing:  Name  of  lode; 
name  of  locator;  date  of  location;  length  claimed  on  each  side 
of  discovery  shaft;  width  claimed  on  each  side  of  vein  or  lode; 
general  course  of  lode.  Within  60  days  from  uncovering  or 
disclosing  the  lode,  and  before  filing  location  certificate,  sink 
a  discovery  shaft  thereon.  Any  open-cut,  cross-cut,  or  tunnel 
at  a  depth  sufficient  to  disclose  the  mineral  vein  or  lode,  or 
an  adit  of  at  least  ten  feet  in  along  the  lode,  from  point  where 
the  lode  may  be  in  any  manner  discovered,  shall  be  equivalent 
to  a  discovery  shaft. 

OREGON 

A  person  may  locate  one  claim  only  upon  each  lead  or  vein, 
except  the  discoverer  of  a  new  lead  or  vein  not  previously 
located  upon,  who  shall  be  entitled  to  one  additional  claim  for 
the  discovery  thereof.  A  citizen  of  the  United  States,  or  one 
who  has  declared  his  intention  to  become  such,  may  locate  a 
lode  by  placing  thereon  a  notice  containing:  Name  of  lode 
or  claim;  name  or  names  of  locators;  date  of  location;  length 
along  lode  each  way  from  discovery;  width  on  each  side  of 
lode;  general  course  or  strike  of  vein  or  lode  with  reference 
to  some  natural  object  or  permanent  monument.  Boundaries 


STATE  STATUTES  191 

must  be  marked  within  30  days  after  posting  location  notice 
by  six  posts,  projecting  not  less  than  three  feet  above  the  sur 
face  of  the  ground,  and  not  less  than  four  inches  square  or 
in  diameter,  or  by  mounds  of  stone,  or  earth  and  stone,  at 
least  two  feet  in  height.  A  monument  to  be  placed  at  each 
corner  and  at  the  centre  ends  of  such  claim.  Within  60  days 
from  date  of  posting  location  notice  and  before  recording  same, 
a  discovery  shaft  which  shall  not  be  deemed  a  part  of  the 
annual  or  assessment  work  must  be  sunk  to  a  depth  of  at 
least  ten  feet  from  the  lowest  part  of  the  rim  of  such  shaft 
at  the  surface,  or  deeper,  if  necessary,  to  show  by  such  work 
a  vein  or  lode  of  mineral  deposit  in  place.  A  cut,  cross-cut, 
or  tunnel,  which  cuts  the  lode  at  a  depth  of  ten  feet,  or  an 
open-cut  at  least  six  feet  deep,  four  feet  wide,  and  ten  feet 
in  length  along  the  lode  from  the  point  where  same  may  in 
any  manner  be  discovered,  is  equivalent  to  such  discovery  shaft. 
Within  60  days  from  date  of  posting  location  notice,  a  copy 
of  the  location  notice  must  be  filed  for  record,  together  with 
the  affidavit  of  the  locator  or  other  person  that  the  discovery 
work  has  been  performed. 

SOUTH   DAKOTA 

The  width  of  lode  claims  shall  be  150  feet  on  each  side  of 
the  centre  of  the  vein.  The  boundaries  shall  be  marked,  before 
filing  location  certificate,  by  eight  posts,  hewed  or  blazed  on 
the  side  or  sides  facing  the  claim  and  plainly  marked  with 
the  name  of  lode  and  corner,  end,  or  side  of  claim  that  they 
respectively  represent,  and  set  in  ground  or  monument  of  stone. 
One  post  to  be  placed  at  each  corner,  one  at  the  centre  of  each 
side-line,  and  one  at  each  end  of  the  lode.  There  should  be 
posted  at  the  point  of  discovery  on  the  surface,  before  filing 
location  certificate,  a  notice  containing:  The  name  of  lode; 
the  name  or  names  of  locators;  the  date  of  discovery;  the 
length  on  each  side  of  discovery;  the  width  on  each  side  of 
lode.  Within  60  days  from  uncovering  or  disclosing  a  lode, 
and  before  recording  the  location  certificate,  the  discovery  shaft 
must  be  sunk  a  sufficient  depth  to  show  a  well  defined  mineral 
vein  or  lode,  and  not  less  than  ten  feet  in  depth  on  the  lower 


192  MINING  LAW 

side.  Any  ope.n-cut  of  at  least  ten-foot  face,  cross-cut,  or  tunnel 
at  a  depth  sufficient  to  disclose  the  mineral  vein  or  lode,  or 
an  adit  driven  at  least  ten  feet  in  along  the  lode  from  the  point 
where  the  lode  may  be  in  any  manner  discovered,  shall  be 
equivalent  to  a  discovery  shaft.  Sixty  days  from  date  of  dis 
covery  are  allowed  to  record  a  location  certificate,  which  shall 
contain:  Name  of  lode;  name  or  names  of  locators;  date  of 
location;  length  on  each  side  of  discovery  shaft;  width  on  each 
side  of  lode;  general  course  of  lode.  When  the  location  cer 
tificate  is  filed  for  record,  an  acknowledgment  must  be  taken 
and  posted  with  the  original  notice  on  the  claim  within  ninety 
days  from  date  of  the  original  notice  on  the  ground,  the  acknowl 
edgment  certificate  to  contain  name  of  location,  name  or  names 
of  locators,  date  of  filing,  and  book  and  page  where  recorded. 

UTAH 

Upon  making  a  discovery,  erect  a  monument  at  place  of  dis 
covery  and  place  thereon  a  location  notice  containing:  Name 
of  lode  or  claim;  name  of  locator  or  locators;  date  of  location; 
if  a  lode  claim,  length  along  vein  each  way  from  discovery, 
width  on  each  side  of  vein,  general  course  of  vein,  and  refer 
ence  by  natural  object  or  permanent  monument;  if  a  placer 
or  millsite  claim,  the  number  of  acres  or  superficial  feet  claimed, 
and  reference  to  a  natural  object  or  permanent  monument. 
Within  thirty  days  from  date  of  posting  location  notice,  file  a 
substantial  copy  for  record.  End-lines  of  each  claim  must  be 
parallel.  When  doing  the  assessment  work  for  a  group  at  one 
point,  post  a  notice  at  the  discovery  monument  of  each  claim 
stating  where  such  work  is  being  done;  also  post  a  notice 
at  entrance  to  the  workings  where  said  work  is  being  done, 
stating  the  name  of  the  claims  for  which  the  work  is  being 
done.  Proof  of  labor  may  be  made  and  filed  within  thirty  days 
after  completion  of  work  or  improvements,  which  shall  be  prima 
facie  evidence  of  the  facts  therein  stated. 

WASHINGTON 

LODE  LOCATIONS 

Locators   shall   post  at  the  discovery  at  time  of  discovery  a 


STATE  STATUTES  193 

notice  containing  the  name  of  the  lode,  the  name  of  the  locator 
or  locators,  and  the  date  of  discovery.  Boundaries  must  be 
marked,  before  filing  notice  for  record,  by  substantial  posts  or 
stone  monuments  bearing  name  of  lode  and  date  of  location, 
one  at  each  corner  of  the  claim.  Monuments  and  posts  must 
not  be  less  than  three  feet  high.  If  posts,  they  must  not  be 
less  than  four  inches  in  diameter.  Brush  should  be  cut  and 
trees  blazed  to  mark  the  lines.  Before  filing  location  notice 
for  record,  except  on  mining  claims  located  west  of  the  sum 
mit  of  the  Cascade  mountains,  sink  a  discovery  shaft  upon  the 
lode  to  a  depth  of  ten  feet  from  the  lowest  part  of  the  rim  of 
such  a  shaft  at  the  surface.  Any  open-cut  or  tunnel  having  a 
length  of  ten  feet  which  shall  cut  a  lode  at  a  depth  of  ten 
feet  below  the  surface,  shall  be  equivalent  to  a  discovery  shaft. 
Within  90  days  from  date  of  discovery,  record  a  location  notice 
containing:  Name  or  names  of  locators;  date  of  location;  length 
on  each  side  of  discovery;  general  course  of  lode;  reference  to 
some  natural  object  or  permanent  monument.  Proof  of  labor 
may  be  made  and  recorded  upon  placer  and  lode  claims  within 
thirty  days  after  the  expiration  of  the  time  fixed  for  annual 
labor  or  improvements,  and  shall  be  prima  facie  evidence  of 
such  labor  or  improvements. 

PLACER  LOCATIONS 

Post  immediately  at  point  of  discovery  a  location  notice  con 
taining:  Name  of  claim;  name  of  locator  or  locators;  date  of 
discovery  and  posting  notice;  description  of  claim  by  reference 
to  legal  subdivisions  if  in  conformity  with  the  public  surveys, 
otherwise  refer  to  natural  object  or  permanent  monument.  Mark 
the  boundaries  upon  the  ground  within  thirty  days  from  dis 
covery,  even  if  claim  is  located  by  legal  subdivisions.  Within 
thirty  days  from  date  of  discovery  record  the  location  notice. 
Within  sixty  days  from  date  of  discovery,  perform  labor  in 
developing,  aggregating  at  least  ten  dollars  for  each  twenty 
acres  or  fractional  part,  except  that  this  does  not  apply  to 
placer  claims  located  for  the  development  of  petroleum,  natural 
gas,  and  other  natural  oil  products.  Upon  performance  of  the 
discovery  or  location  labor,  file  affidavit  of  its  performance  and 


194  MINING  LAW 

nature,  'proof  of  labor',  which  shall  be  prima  facie  evidence  of 
the  facts  therein  stated. 

WYOMING 

LODE   LOCATIONS 

Post  at  point  of  discovery  on  the  surface,  before  filing  loca 
tion  certificate,  a  notice  containing:  Name  of  lode  or  claim; 
name  of  discoverer  and  locator;  date  of  such  discovery.  Be 
fore  filing  location  certificate,  mark  boundaries  by  six  monu 
ments  of  stone  or  posts,  hewed  or  marked  on  the  side  which 
faces  the  claim ;  one  monument  at  each  side  corner  and  one 
at  the  centre  of  each  side-line.  Within  60  days  from  discovery 
of  lode  and  before  filing  a  location  certificate,  sink  a  shaft 
upon  the  discovery  lode  to  a  depth  of  ten  feet  from  the  lowest 
part  of  the  rim  of  such  shaft  at  the  surface.  Any  open-cut 
which  shall  cut  the  vein  ten  feet  in  length  and  with  face  ten 
feet  in  height,  or  any  cross-cut  or  tunnel  on  the  vein  ten  feet 
in  length  and  cutting  the  vein  ten  feet  below  the  surface  as 
measured  from  the  bottom  of  such  tunnel,  is  the  equivalent  of 
a  discovery  shaft.  Sixty  days  from  date  of  discovery  are  al 
lowed  to  record  a  location  certificate  containing:  Name  of 
lode  claim;  name  or  names  of  locators;  date  of  location;  length 
along  vein  each  way  from  discovery  shaft;  width  on  each  side 
of  discovery  workings;  general  course  of  vein;  reference  to  sec 
tion  or  quarter-section  corner  if  upon  surveyed  land,  or  to 
natural  object  or  permanent  monument  if  upon  unsurveyed  land. 
Proof  of  labor  may  be  made  and  recorded  within  60  days  of 
the  completion  of  the  required  assessment  work. 

PLACER   LOCATIONS 

Post  upon  claim,  before  filing  location  certificate,  a  notice 
containing  the  name  of  claim,  name  of  locator  or  locators,  date 
of  discovery,  and  number  of  feet  or  acres  claimed.  Mark, 
before  filing  location  certificate,  by  posts  or  stone  monuments 
at  each  corner  of  claim.  Within  ninety  days  after  discovery, 
record  a  location  certificate  containing:  Name  of  claim  desig 
nated  as  a  placer;  name  or  names  of  locators;  date  of  location; 
number  of  feet  or  acres  claimed;  reference  to  a  natural  object 
or  permanent  monument. 


APPENDIX  B. 

UNITED    STATES    MINING   STATUTES    AND   REGULA 
TIONS   OF  THE   GENERAL  LAND  OFFICE. 
APPROVED  MARCH  29,  1909. 

LAWS. 

TITLE  XXXII,  CHAPTER  6,  REVISED 
STATUTES. 

Mineral   Lands   and   Mining   Resources. 

SEC.  2318.  In  all  cases  lands  valuable  for  minerals  Mineral 
shall  be  reserved  from  sale,  except  as  otherwise  expressly  lands  reserved, 
directed  by  law. 

SEC.   2319.     All   valuable  mineral   deposits    in   lands   be-     Mineral 
longing   to   the   United   States,    both   surveyed   and    unsur-  pachas?611  b*y 
veyed,   are    hereby    declared    to    be    free   and    open    to    ex-  citizens, 
ploration  and  purchase,  and  the  lands  in  which  they  are 
found    to    occupation    and    purchase,    by    citizens    of    the 
United   States   and   those   who   have   declared   their   inten 
tion  to  become  such,  under  regulations  prescribed  by  law, 
and  according  to  the  local  customs  or  rules  of  miners  in 
the  several  mining  districts,  so  far  as  the  same  are  appli 
cable   and    not   inconsistent   with   the   laws  of   the   United 
States. 

SEC.  2320.     Mining  claims  upon  veins  or  lodes  of  quartz     Length    of 
or  other  rock  in  place  bearing  gold,  silver,  cinnabar,  lead,  mining     claims 
tin,  copper,  or  other  valuable  deposits,  heretofore  located,  lodes, 
shall  be  governed  as  to  length  along  the  vein  or  lode  by 
the   customs,    regulations,   and   laws   in    force   at   the   date 
of  their  location.     A  mining  claim  located  after  the  tenth 
day   of  May,   eighteen   hundred   and   seventy-two,   whether 
located  by  one  or  more  persons,  may  equal,  but  shall  not 
exceed,  one  thousand  five  hundred  feet  in  length  along  the 
vein  or  lode;   but  no  location  of  a  mining  claim  shall  be 
made  until   the  discovery  of  the  vein  or  lode  within  the 

195 


196  MINING  LAW 

limits  of  the  claim  located.  No  claim  shall  extend  more 
than  three  hundred  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface,  nor  shall  any  claim  be  limited  by  any 
mining  regulation  to  less  than  twenty-five  feet  on  each 
side  of  the  middle  of  the  vein  at  the  surface,  except  where 
adverse  rights  existing  on  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  render  such  limitation  neces 
sary.  The  end  lines  of  each  claim  shall  be  parallel  to 
each  other. 

Proof  of  citi-  SEC.  2321.  Proof  of  citizenship,  under  this  chapter,  may 
consist,  in  the  case  of  an  individual,  of  his  own  affidavit 
thereof;  in  the  case  of  an  association  of  persons  unincor 
porated,  of  the  affidavit  of  their  authorized  agent,  made 
on  his  own  knowledge  or  upon  information  and  belief; 
and  in  the  case  of  a  corporation  organized  under  the  laws 
of  the  United  States,  or  of  any  State  or  Territory  thereof, 
by  the  filing  of  a  certified  copy  of  their  charter  or  cer 
tificate  of  incorporation. 

Locator  s'  SEC.  2322.  The  locators  of  all  mining  locations  hereto- 
session  'and'en-  fore  made  or  which  shall  hereafter  be  made,  on  any  min- 
joyment.  eral  vein^  j0(je>  Or  ledge,  situated  on  the  public  domain, 

their  heirs  and  assigns,  where  no  adverse  claim  exists  on 
the  tenth  day  of  May,  eighteen  hundred  and  seventy-two, 
so  long  as  they  comply  with  the  laws  of  the  United  States, 
.and  with  State,  Territorial,  and  local  regulations  not  in 
conflict  with  the  laws  of  the  United  States  governing  their 
possessory  title,  shall  have  the  exclusive  right  of  posses 
sion  and  enjoyment  of  all  the  surface  included  within  the 
lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which 
lies  inside  of  such  surface  lines  extended  downward  ver 
tically,  although  such  veins,  lodes,  or  ledges  may  so  far 
depart  from  a  perpendicular  in  their  course  downward 
as  to  extend  outside  the  vertical  side  lines  of  such  surface 
locations.  But  their  right  of  possession  to  such  outside 
parts  of  such  veins  or  ledges  shall  be  confined  to  such 
portions  thereof  as  lie  between  vertical  planes  drawn 
downward  as  above  described,  through  the  end  lines  of 


U.  S.  STATUTES  197 

their  locations,  so  continued  in  their  own  direction  that 
such  planes  will  intersect  such  exterior  parts  of  such 
veins  or  ledges.  And  nothing  in  this  section  shall  author 
ize  the  locator  or  possessor  of  a  vein  or  lode  which  extends 
in  its  downward  course  beyond  the  vertical  lines  of  his 
claim  to  enter  upon  the  surface  of  a  claim  owned  or 
possessed  by  another. 

SEC.  2323.  Where  a  tunnel  is  run  for  the  development  Owners  o 
of  a  vein  or  lode,  or  for  the  discovery  of  mines,  the  own-  J" nn 
ers  of  such  tunnel  shall  have  the  right  of  possession  of  all 
veins  or  lodes  within  three  thousand  feet  from  the  face  of 
such  tunnel  on  the  line  thereof,  not  previously  known  to 
exist,  discovered  in  such  tunnel,  to  the  same  extent  as  if 
discovered  from  the  surface;  and  locations  on  the  line  of 
such  tunnel  of  veins  or  lodes  not  appearing  on  the  sur 
face,  made  by  other  parties  after  the  commencement  of 
the  tunnel,  and  while  the  same  is  being  prosecuted  with 
reasonable  diligence,  shall  be  invalid,  but  failure  to  prose 
cute  the  work  on  the  tunnel  for  six  months  shall  be  con 
sidered  as  an  abandonment  of  the  right  to  all  undiscov 
ered  veins  on  the  line  of  such  tunnel. 

SEC.  2324.  The  miners  of  each  mining  district  may  Regulati  o  n 
make  regulations  not  in  conflict  with  the  laws  of  the  ™|de  by  min 
United  States,  or  with  the  laws  of  the  State  or  Territory 
in  which  the  district  is  situated,  governing  the  location, 
manner  of  recording,  amount  of  work  necessary  to  hold 
possession  of  a  mining  claim,  subject  to  the  following 
requirements:  The  location  must  be  distinctly  marked  on 
the  ground  so  that  its  boundaries  can  be  readily  traced. 
All  records  of  mining  claims  hereafter  made  shall  con 
tain  the  name  or  names  of  the  locators,  the  date  of  the 
location,  and  such  a  description  of  the  claim  or  claims 
located  by  reference  to  some  natural  object  or  permanent 
monument  as  will  identify  the  claim.  On  each  claim 
located  after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  and  until  a  patent  has  been  issued  therefor, 
not  less  than  one  hundred  dollars'  worth  of  labor  shall 
be  performed  or  improvements  made  during  each  year. 


198  MINING  LAW 

On  all  claims  located  prior  to  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  ten  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  by  the 
tenth  day  of  June,  eighteen  hundred  and  seventy-four, 
and  each  year  thereafter,  for  each  one  hundred  feet  in 
length  along  the  vein  until  a  patent  has  been  issued  there 
for;  but  where  such  claims  are  held  in  common,  such 
expenditure  may  be  made  upon  any  one  claim;  and  upon 
a  failure  to  comply  with  these  conditions  the  claim  or 
mine  upon  which  such  failure  occurred  shall  be  open  to 
relocation  in  the  same  manner  as  if  no  location  of  the 
same  had  ever  been  made,  provided  that  the  original 
locators,  their  heirs,  assigns,  or  legal  representatives, 
have  not  resumed  work  upon  the  claim  after  failure  and 
before  such  location.  Upon  the  failure  of  any  one  of 
several  co-owners  to  contribute  his  proportion  of  the  ex 
penditures  required  hereby,  the  co-owners  who  have  per 
formed  the  labor  or  made  the  improvements  may,  at  the 
expiration  of  the  year,  give  such  delinquent  co-owner 
personal  notice  in  writing  or  notice  by  publication  in 
the  newspaper  published  nearest  the  claim  for  at  least 
once  a  week  for  ninety  days,  and  if  at  the  expiration  of 
ninety  days  after  such  notice  in  writing  or  by  publication 
such  delinquent  should  fail  or  refuse  to  contribute  his  pro 
portion  of  the  expenditure  required  by  this  section  his 
interest  in  the  claim  shall  become  the  property  of  his  co- 
owners  who  have  made  the  required  expenditures. 

Patents  for  SEC.  2325.  A  patent  for  any  land  claimed  and  located 
werobtainedS' for  valuable  deposits  may  be  obtained  in  the  following 
manner:  Any  person,  association,  or  corporation  author 
ized  to  locate  a  claim  under  this  chapter,  having  claimed 
and  located  a  piece  of  land  for  such  purposes,  who  has, 
or  have,  complied  with  the  terms  of  this  chapter,  may 
file  in  the  proper  land  office  an  application  for  a  patent, 
under  oath,  showing  such  compliance,  together  with  a  plat 
and  field  notes  of  the  claim  or  claims  in  common,  made  by 
or  tfnder  the  direction  of  the  United  States  surveyor-gen 
eral,  showing  accurately  the  boundaries  of  the  claim  or 


U.  S.  STATUTES  199 

claims,  which  shall  be  distinctly  marked  by  monuments  on 
the  ground,  and  shall  post  a  copy  of  such  plat,  together 
with  a  notice  of  such  application  for  a  patent,  in  a  con 
spicuous  place  on  the  land  embraced  in  such  plat  previous 
to  the  filing  of  the  application  for  a  patent,  and  shall  file 
an  affidavit  of  at  least  two  persons  that  such  notice  has 
been  duly  posted,  and  shall  file  a  copy  of  the  notice  in  such 
land  office,  and  shall  thereupon  be  entitled  to  a  patent  for 
the  land,  in  the  manner  following:  The  register  of  the 
land  office,,  upon  the  filing  of  such  application,  plat,  field 
notes,  notices,  and  affidavits,  shall  publish  a  notice  that 
such  application  has  been  made,  for  the  period  of  sixty 
days,  in  a  newspaper  to  be  by  him  designated  as  published 
nearest  to  such  claim;  and  he  shall  also  post  such  notice 
in  his  office  for  the  same  period.  The  claimant  at  the  time 
of  filing  this  application,  or  at  any  time  thereafter,  within 
the  sixty  days  of  publication,  shall  file  with  the  register 
a  certificate  of  the  United  States  surveyor-general  that 
five  hundred  dollars'  worth  of  labor  has  been  expended 
or  improvements  made  upon  the  claim  by  himself  or 
grantors;  that  the  plat  is  correct,  with  such  further  de 
scription  by  such  reference  to  natural  objects  or  perma 
nent  monuments  as  shall  identify  the  claim,  and  furnish 
an  accurate  description  to  be  incorporated  in  the  patent. 
At  the  expiration  of  the  sixty  days  of  publication  the 
claimant  shall  file  his  affidavit,  showing  that  the  plat  and 
notice  have  been  posted  in  a  conspicuous  place  on  the  claim 
during  such  period  of  publication.  If  no  adverse  claim 
shall  have  been  filed  with  the  register  and  the  receiver 
of  the  proper  land  office  at  the  expiration  of  the  sixty  days 
of  publication,  it  shall  be  assumed  that  the  applicant  is 
entitled  to  a  patent,  upon  the  payment  to  the  proper  officer 
of  five  dollars  per  acre,  and  that  no  adverse  claim  exists; 
and  thereafter  no  objection  from  third  parties  to  the  issu 
ance  of  a  patent  shall  be  heard,  except  it  be  shown  that 
the  applicant  has  failed  to  comply  with  the  terms  of  this 
chapter. 

SEC.   2326.     Where  an  adverse  claim  is  filed  during  the 


200  MINING  LAW 

period  of  publication,  it  shall  be  upon  oath  of  the  person 
or  persons  making  the  same,  and  shall  show  the  nature, 
boundaries,  and  extent  of  such  adverse  claim,  and  all  pro 
ceedings,  except  the  publication  of  notice  and  making 
and  filing  of  the  affidavit  thereof,  shall  be  stayed  until  the 
controversy  shall  have  been  settled  or  decided  by  a  court 
of  competent  jurisdiction,  or  the  adverse  claim  waived. 
It  shall  be  the  duty  of  the  adverse  claimant,  within  thirty 
days  after  filing  his  claim,  to  commence  proceedings  in  a 
court  of  competent  jurisdiction,  to  determine  the  question 
of  the  right  of  possession,  and  prosecute  the  same  with 
reasonable  diligence  to  final  judgment;  and  a  failure  so 
to  do  shall  be  a  waiver  of  his  adverse  claim.  After  such 
judgment  shall  have  been  rendered,  the  party  entitled  to 
the  possession  of  the  claim,  or  any  portion  thereof,  may, 
without  giving  further  notice,  file  a  certified  copy  of  the 
judgment-roll  with  the  register  of  the  land  office,  together 
with  the  certificate  of  the  surveyor-general  that  the  requi 
site  amount  of  labor  has  been  expended  or  improvements 
made  thereon,  and  the  description  required  in  other  cases, 
and  shall  pay  to  the  receiver  five  dollars  per  acre  for  his 
claim,  together  with  the  proper  fees,  whereupon  the  whole 
proceedings  and  the  judgment-roll  shall  be  certified  by  the 
register  to  the  Commissioner  of  the  General  Land  Office, 
and  a  patent  shall  issue  thereon  for  the  claim,  or  such  por 
tion  thereof  as  the  applicant  shall  appear,  from  the  deci 
sion  of  the  court,  to  rightly  possess.  If  it  appears  from 
the  decision  of  the  court  that  several  parties  are  entitled 
to  separate  and  different  portions  of  the  claim,  each  party 
may  pay  for  his  portion  of  the  claim  with  the  proper  fees, 
and  file  the  certificate  and  description  by  the  surveyor- 
general,  whereupon  the  register  shall  certify  the  proceed 
ings  and  judgment-roll  to  the  Commissioner  of  the  Gen 
eral  Land  Office,  as  in  the  preceding  case,  and  patents 
shall  issue  to  the  several  parties  according  to  their  respec 
tive  rights.  Nothing  herein  contained  shall  be  construed 
to  prevent  the  alienation  of  a  title  conveyed  by  a  patent 
for  a  mining  claim  to  any  person  whatever. 


U.  S.  STATUTES 


201 


SEC.  2327.  The  description  of  vein  or  lode  claims  upon 
surveyed  lands  shall  designate  the  location  of  the  claims 
with  reference  to  the  lines  of  the  public  survey,  but  need 
not  conform  therewith;  but  where  patents  have  been  .or 
shall  be  issued  for  claims  upon  unsurveyed  lands,  the 
surveyors-general,  in  extending  the  public  survey,  shall 
adjust  the  same  to  the  boundaries  of  said  patented  claims 
so  as  in  no  case  to  interfere  with  or  change  the  true  loca 
tion  of  such  claims  as  they  are  officially  established  upon 
the  ground.  Where  patents  have  issued  for  mineral  lands, 
those  lands  only  shall  be  segregated  and  shall  be  deemed 
to  be  patented  which  are  bounded  by  the  lines  actually 
marked,  denned,  and  established  upon  the  ground  by  the 
monuments  of  the  official  survey  upon  which  the  patent 
grant  is  based,  and  surveyors-general  in  executing  sub 
sequent  patent  surveys,  whether  upon  surveyed  or  unsur 
veyed  lands,  shall  be  governed  accordingly.  The  said 
monuments  shall  at  all  times  constitute  the  highest  author- 
ity  as  to  what  land  is  patented,  and  in  case  of  any  conflict 
between  the  said  monuments  of  such  patented  claims  and 
the  descriptions  of  said  claims  in  the  patents  issued  there 
for  the  monuments  on  the  ground  shall  govern,  and  errone 
ous  or  inconsistent  descriptions  or  calls  in  the  patent 
descriptions  shall  give  way  thereto. 

SEC.  2328.  Applications  for  patents  for  mining  claims 
under  former  laws  now  pending  may  be  prosecuted  to  a 
final  decision  in  the  General  Land  Office;  but  in  such 
cases  where  adverse  rights  are  not  affected  thereby,  pat 
ents  may  issue  in  pursuance  of  the  provisions  of  this 
chapter;  and  all  patents  for  mining  claims  upon  veins  or 
lodes  heretofore  issued  shall  convey  all  the  rights  and 
privileges  conferred  by  this  chapter,  where  no  adverse 
rights  existed  on  the  tenth  day  of  May,  eighteen  hundred 
and  seventy-two. 

SEC.  2329.  Claims  usually  called  "placers,"  including 
all  forms  of.  deposit,  excepting  veins  of  quartz,  or  other 
rock  in  place,  shall  be  subject  to  entry  and  patent,  under 
like  circumstances  and  conditions,  and  upon  similar  pro- 


Descript  i  o  i 
or  j0(je  claims 


Patents 

official0  r 
merits. 


Monume  n  t 


Pending    ap 


Conform  i  t 
of  placer  claim 
to  survey: 
llmlt  of- 


202  MINING  LAW 

ceedings,  as  are  provided  for  vein  or  lode  claims;  but 
where  the  lands  have  been  previously  surveyed  by  the 
United  States,  the  entry  in  its  exterior  limits  shall  con 
form  to  the  legal  subdivisions  of  the  public  lands. 

Subdivisio  n  s  SEC.  2330.  Legal  subdivisions  of  forty  acres  may  be 
Lcts;en"maxi-  subdivided  into  ten-acre  tracts;  and  two  or  more  persons, 
inJ-^ofc,  Placeror  associations  of  persons,  having  contiguous  claims  of 

'£i  Lions. 

any  size,  although  such  claims  may  be  less  than  ten  acres 
each,  may  make  joint  entry  thereof;  but  no  location  of  a 
placer  claim,  made  after  the  ninth  day  of  July,  eighteen 
hundred  and  seventy,  shall  exceed  one  hundred  and  sixty 
acres  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  surveys;  and 
nothing  in  this  section  contained  shall  defeat  or  impair 
any  bona  fide  preemption  or  homestead  claim  upon  agri 
cultural  lands,  or  authorize  the  sale  of  the  improvements 
of  any  bona  fide  settler  to  any  purchaser. 

Conformity  SEC.  2331.  Where  placer  claims  are  upon  surveyed  lands, 
P  8*11*  v  ely°a, and  conform  to  legal  subdivisions,  no  further  survey  or 
iltation  o  f  pja^-  shaii  be  required,  and  all  placer-mining  claims  located 
after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,  shall  conform  as  near  as  practicable  with  the  United 
States  system  of  public-land  surveys,  and  the  rectangular 
subdivisions  of  such  surveys,  and  no  such  location  shall 
include  more  than  twenty  acres  for  each  individual  claim 
ant;  but  where  placer  claims  can  not  be  conformed  to 
legal  subdivisions,  survey  and  plat  shall  be  made  as  on 
unsurveyed  lands;  and  where  by  the  segregation  of  mineral 
lands  in  any  legal  subdivision  a  quantity  of  agricultural 
land  less  than  forty  acres  remains,  such  fractional  portion 
of  agricultural  land  may  be  entered  by  any  party  qualified 
by  law,  for  homestead  or  preemption  purposes. 

W  h  a  t  e  v  I-  SEC.  2332.  Where  such  person  or  association,  they  and 
Son,0 &cP°to  their  grantors,  have  held  and  worked  their  claims  for  a 
:hta  to1  a,Shat^  Period  equal  to  the  time  prescribed  by  the  statute  of 
t.  limitations  for  mining  claims  of  the  State  or  Territory 

where  the  same  may  be  situated,  evidence  of  such  posses 
sion  and  working  of  the  claims  for  such  period  shall  be 


U.  S.  STATUTES  203 

sufficient  to  establish  a  right  to  a  patent  thereto  under  this 
chapter,  in  the  absence  of  any  adverse  claim;  but  nothing 
in  this  chapter  shall  be  deemed  to  impair  any  lien  which 
may  have  attached  in  any  way  whatever  to  any  mining 
claim  or  property  thereto  attached  prior  to  the  issuance 
of  a  patent. 

SEC.  2333.  Where  the  same  person,  association,  or  cor-  P  r  oceedini 
poration  is  in  possession  of  a  placer  claim,  and  also  a  vein  Jiacer^c  ?a  if] 
or  lode  included  within  the  boundaries  thereof,  applica- &c- 
tion  shall  be  made  for  a  patent  for  the  placer  claim,  with 
the  statement  that  it  includes  such  vein  or  lode,  and  in 
such  case  a  patent  shall  issue  for  the  placer  claim,  subject 
to  the  provisions  of  this  chapter,  including  such  vein  or 
lode,  upon  the  payment  of  five  dollars  per  acre  for  such 
vein  or  lode  claim  and  twenty-five  feet  of  surface  on  each 
side  thereof.  The  remainder  of  the  placer  claim  or  any 
placer  claim  not  embracing  any  vein  or  lode  claim  shall 
be  paid  for  at  the  rate  of  two  dollars  and  fifty  cents  per 
acre,  together  with  all  costs  of  proceedings;  and  where  a 
vein  or  lode,  such  as  is  described  in  section  twenty-three 
hundred  and  twenty,  is  known  to  exist  within  the  bound 
aries  of  a  placer  claim,  an  application  for  a  patent  for 
such  placer  claim  which  does  not  include  an  application 
for  the  vein  or  lode  claim  shall  be  construed  as  a  con 
clusive  declaration  that  the  claimant  of  the  placer  claim 
has  no  right  of  possession  of  the  vein  or  lode  claim;  but 
where  the  existence  of  a  vein  or  lode  in  a  placer  claim  is 
not  known,  a  patent  for  the  placer  claim  shall  convey  all 
valuable  mineral  and  other  deposits  within  the  boundaries 
thereof. 

SEC.    2334.      The   surveyor-general   of   the   United    States      S  u  r  v  e  y  o 
may   appoint    in    each    land     district     containing     mineral  Po?i?t'a 
lands    as    many    competent    surveyors    as    shall    apply    for  °J8.  °* 
appointment   to   survey   mining   claims.     The   expenses    of 
the  survey  of  vein  or  lode  claims,  and  the  survey  and  sub 
division  of  placer  claims  into  smaller  quantities  than  one 
hundred  and  sixty  acres,  together  with  the  cost  of  publi 
cation  of  notices,  shall  be  paid  by  the  applicants,  and  they 


204  MINING  LAW 

shall  be  at  liberty  to  obtain  the  same  at  the  most  reason 
able  rates,  and  they  shall  also  be  at  liberty  to  employ  any 
United  States  deputy  surveyor  to  make  the  survey.  The 
Commissioner  of  the  General  Land  Office  shall  also  have 
power  to  establish  the  maximum  charges  for  surveys  and 
publication  of  notices  under  this  chapter;  and,  in  case  of 
excessive  charges  for  publication,  he  may  designate  any 
newspaper  published  in  a  land  district  where  mines  are 
situated  for  the  publication  of  mining  notices  in  such  dis 
trict,  and  fix  the  rates  to  be  charged  by  such  paper;  and, 
to  the  end  that  the  Commissioner  may  be  fully  informed 
on  the  subject,  each  applicant  shall  file  with  the  register 
a  sworn  statement  of  all  charges  and  fees  paid  by  such 
applicant  for  publication  and  surveys,  together  with,  all 
fees  and  money  paid  the  register  and  the  receiver  of  the 
land  office,  which  statement  shall  be  transmitted,  with  the 
other  papers  in  the  case,  to  the  Commissioner  of  the  Gen 
eral  Land  Office. 

Verificat  i  o  n      SEC.  2335.     All  affidavits  required  to  be  made  under  this 
c   a  ts>  chapter   may   be   verified   before  any   officer   authorized  to 

administer  oaths  within  the  land  district  where  the  claims 
may  be  situated,  and  all  testimony  and  proofs  may  be 
taken  before  any  such  officer,  and,  when  duly  certified  by 
the  officer  taking  the  same,  shall  have  the  same  force  and 
effect  as  if  taken  before  the  register  and  receiver  of  the 
land  office.  In  cases  of  contest  as  to  the  mineral  or  agri 
cultural  character  of  land,  the  testimony  and  proofs  may 
be  taken  as  herein  provided  on  personal  notice  of  at  least 
ten  days  to  the  opposing  party;  or  if  such  party  can  not 
be  found,  then  by  publication  of  at  least  once  a  week  for 
thirty  days  in  a  newspaper,  to  be  designated  by  the  regis 
ter  of  the  land  office  as  published  nearest  to  the  location 
of  such  land;  and  the  register  shall  require  proof  that 
such  notice  has  been  given. 

Where    veins      SEC.  2336.     Where  two  or  more  veins  intersect  or  cross 

itersect,  &c.      each  other,  priority  of  title  shall  govern,  and  such  prior 

location  shall  be  entitled  to  all  ore  or  mineral  contained 

within  the  space  of  intersection;   but  the  subsequent  loca- 


U.  S.  STATUTES  205 

tion  shall  have  the  right  of  way  through  the  space  of 
intersection  for  the  purposes  of  the  convenient  working 
of  the  mine.  And  where  two  or  more  veins  unite,  the  old 
est  or  prior  location  shall  take  the  vein  below  the  point  of 
union,  including  all  the  space  of  intersection. 

SEC.  2337.  Where  nonmineral  land  not  contiguous  to  Patents  for 
the  vein  or  lode  is  used  or  occupied  by  the  proprietor  of  lands,  &c. 
such  vein  or  lode  for  mining  or  milling  purposes,  such 
nonadjacent  surface  ground  may  be  embraced  and  in 
cluded  in  an  application  for  a  patent  for  such  vein  or 
lode,  and  the  same  may  be  patented  therewith,  subject  to 
the  same  preliminary  requirements  as  to  survey  and  notice 
as  are  applicable  to  veins  or  lodes;  but  no  location  here 
after  made  of  such  nonadjacent  land  shall  exceed  five  acres, 
and  payment  for  the  same  must  be  made  at  the  same 
rate  as  fixed  by  this  chapter  for  the  superficies  of  the 
lode.  The  owner  of  a  quartz  mill  or  reduction  works,  not 
owning  a  mine  in  connection  therewith,  may  also  receive 
a  patent  for  his  mill  site,  as  provided  in  this  section. 

SEC.    2338.     As   a   condition   of   sale,   in   the   absence   of     What    condi- 
necessary  legislation  by  Congress,  the  local  legislature  of  f^ay8  be*  ufade 
any    State    or    Territory    may    provide    rules    for   working  {)aytu1r°cal   le^is~ 
mines,  involving  easements,  drainage,  and  other  necessary 
means  to  their  complete  development;  and  those  conditions 
shall  be  fully  expressed  in  the  patent. 

SEC.   2339.     Whenever,  by  priority  of  possession,  rights      Vested  rights 
to  the  use  of  water  for  mining,  agricultural,  manufactur-  f 


ing,  or  other  purposes,  have  vested  and  accrued,  and  the  right     of     way 

for   canals. 
same  are   recognized  and  acknowledged  by  the  local  cus 

toms,  laws,  and  the  decisions  of  courts,  the  possessors 
and  owners  of  such  vested  rights  shall  be  maintained  and 
protected  in  the  same;  and  the  right  of  way  for  the  con 
struction  of  ditches  and  canals  for  the  purposes  herein 
specified  is  acknowledged  and  confirmed;  but  whenever 
any  person,  in  the  construction  of  any  ditch  or  canal,  in 
jures  or  damages  the  possession  of  any  settler  on  the  public 
domain,  the  party  committing  such  injury  or  damage  shall 
be  liable  to  the  party  injured  for  such  injury  or  damage. 


206  MINING  LAW 

Patents,  pre-  SEC.  2340.  All  patents  granted,  or  preemption  or  home- 
i-i^m ^s't  e  ads  steads  allowed,  shall  be  subject  to  any  vested  and  accrued 

subject  to  vest-  water  rights,   or  rights  to  ditches  and  reservoirs  used  in 
ed  and  accrued 

water  rights,      connection  with  such  water  rights,  as  may  have  been  ac 
quired  under  or  recognized  by  the  preceding  section. 

Mineral      SEC.   2341.     Wherever,  upon  the  lands  heretofore  desig- 

naondvaiinulbilenated   as   mineral   lands,   which   have   been   excluded   from 

mines   are    dis-  survey  and  sale,  there  have  been  homesteads  made  by  citi- 

to V Homesteads! zens  °f  the  United  States,  or  persons  who  have  declared 

their  intention  to  become  citizens,  which  homesteads  have 

been  made,  improved,  and  used  for  agricultural  purposes, 

and    upon    which    there   have   been   no    valuable   mines    of 

gold,  silver,  cinnabar,  or  copper  discovered,  and  which  are 

properly  agricultural  lands,  the  settlers  or  owners  of  such 

homesteads  shall  have  a  right  of  preemption  thereto,  and 

shall  be  entitled  to  purchase  the  same  at  the  price  of  one 

dollar  and  twenty-five  cents  per  acre,  and  in  quantity  not 

to  exceed  one  hundred  and  sixty  acres;   or  they  may  avail 

themselves  of  the  provisions  of  chapter  five  of  this  Title, 

relating  to  "Homesteads." 

Mineral      SEC.   2342.     Upon   the  survey  of  the   lands   described   in 

apart'  as°TagTi- the  PrecedinS  section,  the   Secretary  of  the   Interior  may 

cultural    lands,  designate  and  set  apart  such  portions  of  the  same  as  are 

clearly  agricultural  lands,  which  lands  shall  thereafter  be 

subject  to  preemption  and  sale  as  other  public  lands,  and 

be  subject  to  all  the  laws  and  regulations  applicable  to  the 

same. 

A  d  d  i  t  ional  SEC.  2343.  The  President  is  authorized  to  establish  addi- 
am?  officers!  tional  land  districts,  and  to  appoint  the  necessary  officers 
power  of  the  un(jer  existing  laws,  wherever  he  may  deem  the  same  nec- 
provide.  essary  for  the  public  convenience  in  executing  the  provi 

sions  of  this  chapter. 

Provisions  of      SEC.   2344.     Nothing  contained  in   this  chapter  shall  be 

not1  S  to  Chaf? ect  construed   to   impair,    in   any   way,    rights   or   interests    in 

certain    rights.  mining    property    acquired    under    existing    laws;    nor    to 

affect  the  provisions  of  the  act  entitled  "An  act  granting 

to  A.   Sutro  the  right  of  way  and  other  privileges  to  aid 

in   the   construction    of   a    draining    and    exploring    tunnel 


U.  S.  STATUTES  207 

to  the  Comstock  lode,  in  the  State  of  Nevada,"  approved 
July  twenty-five,   eighteen   hundred  and  sixty-six. 

SEC.  2345.     The  provisions  of  the  preceding  sections  of      Mineral 
this  chapter  shall  not  apply  to  the  mineral  lands  situated  tain  States  ex- 
in    the    States     of     Michigan,    Wisconsin,    and     Minnesota,  cepted- 
which  are  declared  free  and  open  to  exploration  and  pur 
chase,  according  to  legal  subdivisions,  in  like  manner  as 
before  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two.    Any  bona  fide  entries  of  such  lands  within  the  States 
named  since  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  may  be  patented  without  reference  to  any  of 
the  foregoing  provisions  of  this  chapter.     Such  lands  shall 
be  offered  for  public  sale  in  the  same  manner,  at  the  same 
'minimum  price,  and  under  the  same  rights  of  preemption 
as  other  public  lands. 

SEC.    2346.      No    act   passed    at   the    first   session    of   the      Grant      of 
Thirty-eighth   Congress,   granting   lands  to    States   or   cor-  ^"corporations 
porations  to  aid  in  the  construction  of  roads  or  for  other  Jj^ineral  ^ands6 
purposes,  or  to  extend  the  time  of  grants  made  prior  to 
the  thirtieth  day  of  January,  eighteen  hundred  and  sixty- 
five,   shall  be  so   construed   as  to   embrace   mineral   lands, 
which  in  all  cases  are  reserved  exclusively  to  the  United 
States,   unless  otherwise  specially   provided  in  the  act  or 
acts  making  the  grant. 

ACTS  OF  CONGRESS  PASSED  SUBSEQUENT 
TO  THE  REVISED  STATUTES. 

AN  ACT  To  amend  the  act  entitled  "An  act  to  promote  the 
development  of  the  mining  resources  of  the  United  States," 
passed  May  tenth,  eighteen  hundred  and  seventy-two. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-  Claim  lo- 
tives  of  the  United  States  of  America  in  Congress  assem-  J^yd  lO^lS?1? 
bled,  That  the  provisions  of  the  fifth  section  of  the  act  first  annual  ex- 
entitled  "An  act  to  promote  the  development  of  the  min-  fendeV^to  Jan" 
ing  resources  of  the  United  States,"  passed  May  tenth,  lj  1875- 
eighteen  hundred  and  seventy-two,  which  requires  expend- 


208  MINING  LAW 

itures  of  labor  and  improvements  on  claims  located  prior 
to  the  passage  of  said  act,  are  hereby  so  amended  that 
the  time  for  the  first  annual  expenditure  on  claims  located 
prior  to  the  passage  of  said  act  shall  be  extended  to  the 
first  day  of  January,  eighteen  hundred  and  seventy-five. 

AN  ACT  To  amend  section  two  thousand  three  hundred  and 
twenty-four  of  the  Revised  Statutes,  relating  to  the  de 
velopment  of  the  mining;  resources  of  the  United  States. 

Money  ex-     Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tunnel  6  consicU  tives  of  the  United  States  of  America  in  Congress  assem- 


'  That  section  two  thousand  three  hundred  and  twenty- 
four  of  the  Revised  Statutes  be,  and  the  same  is  hereby, 
amended  so  that  where  a  person  or  company  has  or  may 
run  a  tunnel  for  the  purpose  of  developing  a  lode  or  lodes, 
owned  by  said  person  or  company,  the  money  so  expended 
in  said  tunnel  shall  be  taken  and  considered  as  expended 
on  said  lode  or  lodes,  whether  located  prior  to  or  since 
the  passage  of  said  act;  and  such  person  or  company  shall 
not  be  required  to  perform  work  on  the  surface  of  said 
lode  or  lodes  in  order  to  hold  the  same  as  required  by 
said  act. 

AN  ACT  To  exclude  the  States  of  Missouri  and  Kansas  from 

the   provisions   of  the   act   of   Congress   entitled  "An   act   to 

4  promote    the    development    of   the   mining   resources    of   the 

United  States,"  approved  May  tenth,  eighteen  hundred  and 

.  seventy-two. 

Missouri  and     Be  it  enacted  by  the  Senate  and  House  of  Representa- 

e^from  the^op-  tives  °f  the  United  States  of  America  in  Congress  assem- 

mineral  ?awshe  bled'  That  within  the  states  of  Missouri  and  Kansas  de 

posits  of  coal,  iron,  lead,  or  other  mineral  be,  and  they  are 

hereby,    excluded   from   the   operation    of   the   act  -entitled 

"An   act  to   promote   the   development   of   the   mining    re 

sources  of  the  United  States,"  approved  May  tenth,  eight 

een  hundred  and  seventy-two,  and  all  lands  in  said  States 

shall  be  subject  to  disposal  as  agricultural   lands, 


ACTS  OF  CONGRESS  209 

A IV  ACT  Authorizing  the  citizens  of  Colorado,  Nevada,  and 
the  Territories*  to  fell  and  remove  timber  on  the  public 
domain  for  mining-  and  domestic  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-  C  i  t  izens  of 
lives  of  the  United  States  of  America  in  Congress  assem-  Vada,ra  and  the 
bled,  That  all  citizens  of  the  United  States  and  other  Terrkories  au- 
persons,  bona  fide  residents  of  the  State  of  Colorado,  or  and  remove 
Nevada,  or  either  of  the  Territories  of  New  Mexico,  Ari-£jjJlfcr  ^Sma^n 
zona,  Utah,  Wyoming,  Dakota,  Idaho,  or  Montana,  and  for  mining  and 
all  other  mineral  districts  of  the  United  States,  shall  be, 
and  are  hereby,  authorized  and  permitted. to  fell  and  re 
move,  for  building,  agricultural,  mining,  or  other  domestic 
purposes,  any  timber  or  other  trees  growing  or  being  on 
the  public  lands,  said  lands  being  mineral,  and  not  subject 
to  entry  under  existing  laws  of  the  United  States,  except 
for  mineral  entry,  in  either  of  said  States,  Territories,  or 
districts  of  which  such  citizens  or  persons  may  be  at  that 
time  bona  fide  residents,  subject  to  such  rules  and  regu 
lations  as  the  Secretary  of  the  Interior  may  prescribe  for 
the  protection  of  the  timber  and  of  the  undergrowth  grow 
ing  upon  such  lands,  and  for  other  purposes:  Provided, 
The  provisions  of  this  act  shall  not  extend  to  railroad  cor 
porations. 

SEC.  2.  That  it  shall  be  the  duty  of  the  register  and  the 
receiver  of  any  local  land  office  in  whose  district  any 
mineral  land  may  be  situated  to  ascertain  from  time  to 
time  whether  any  timber  is  being  cut  or  used  upon  any 
such  lands,  except  for  the  purposes  authorized  by  this  act, 
within  their  respective  land  districts;  and,  if  so,  they 
shall  immediately  notify  the  Commissioner  of  the  General 
Land  Office  of  that  fact;  and  all  necessary  expenses  in 
curred  in  making  such  proper  examinations  shall  be  paid 
ffnd  allowed  such  register  and  receiver  in  making  up  their 
next  quarterly  accounts. 

SEC.  3.  Any  person  or  persons  who  shall  violate  the 
provisions  of  this  act,  or  any  rules  and  regulations  in 
pursuance  thereof  made  by  the  Secretary  of  the  Interior, 


210  MINING  LAW 

shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  con 
viction,  shall  be  fined  in  any  sum  not  exceeding  five  hun 
dred  dollars,  and  to  which  may  be  added  imprisonment 
for  any  term  not  exceeding  six  months. 

AN  ACT  To  amend  sections  twenty-three  hundred  and 
twenty-four  and  twenty-three  hundred  and  twenty-five  of 
the  Revised  Statutes  of  the  United  States  concerning  min 
eral  lands. 

Appiicat  ion     Be  it  enacted  by  the  Senate  and  House  of  Representa- 
bernSde  nbyIai£ tives  °f  the  United  States  of  America  in  Congress  assem- 
thorized   agent.  i)ied,    That   section    twenty-three    hundred    and    twenty-five 
of  the  Revised  Statutes  of  the  United  States  be  amended 
by  adding  thereto  the   following  words:     "Provided,   That 
where  the   claimant  for  a  patent  is  not  a  resident  of  or 
within  the  land  district  wherein  the  vein,  lode,  ledge,  or 
deposit  sought  to  be  patented   is  located,  the  application 
for  patent  and  the  affidavits  required  to  be  made  in  this 
section  by  the  claimant  for  such  patent  may  be  made  by 
his,  her,  or  its  authorized  agent,  where  said  agent  is  con 
versant  with   the   facts   sought  to  be  established   by   said 
affidavits:    And  provided,  That  this  section  shall  apply  to 
all  applications  now  pending  for  patents  to  mineral  lands." 
On  unpatent-      SEC.  2.     That  section  twenty-three  hundred  and  twenty- 
od  °«)mmeifcresfour    of    the    Revised    Statutes    of    the    United    States    be 
Seeding   dat^of  amended  by  addin£  the  following  words:     "Provided,  That 
location.  the    period    within    which    the   work   required    to   be    done 

annually  on  all  unpat'ented  mineral  claims  shall  commence 
on  the  first  day  of  January  succeeding  the  date  of  location 
of  such  claim,  and  this  section  shall  apply  to  all  claims 
located  since  the  tenth  day  of  May,  anno  Domini  eighteen 
hundred  and  seventy-two." 

AN  ACT  To  amend  section  twenty-three  hundred  and  twenty- 
six  of  the  Revised  Statutes  relating  to  suits  at  law  affect 
ing  the  title  to  mining  claims. 

b  r  o  ught    title      Be  it   enacted   by  the  Senate  and  House  of  Representa- 

not   established  tives  of  the  united  States  of  America  in  Congress  assem- 
in 


ACTS  OF  CONGRESS 


211 


Adverse  claim 
61 


bled,  That  if,  in  any  action  brought  pursuant  to  section 
twenty-three  hundred  and  twenty-six  of  the  Revised 
Statutes,  title  to  the  ground  in  controversy  shall  not  be 
established  by  either  party,  the  jury  shall  so  find,  and 
judgment  shall  be  entered  according  to  the  verdict.  In 
such  case  costs  shall  not  be  allowed  to  either  party,  and 
the  claimant  shall  not  proceed  in  the  land  office  or  be 
entitled  to  a  patent  for  the  ground  in  controversy  until  he 
shall  have  perfected  his  title. 

AN  ACT  To  amend  section  twenty-three  hundred  and  twenty- 
Mix:  of  the  Revised  Statutes  in  regard  to  mineral  lands,  and 
for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives  of  the  United  States  of  America  in  Congress  assem- 
bled,  That  the  adverse  claim  required  by  section  twenty- 
three  hundred  and  twenty-six  o.f  the  Revised  Statutes  may 
be  verified  by  the  oath  of  any  duly  authorized  agent  or 
attorney  in  fact  of  the  adverse  claimant  cognizant  of  the 
facts  stated;  and  the  adverse  claimant,  if  residing  or  at 
the  time  being  beyond  the  limits  of  the  district  wherein 
the  claim  is  situated,  may  make  oath  to  the  adverse  claim 
before  the  clerk  of  any  court  of  record  of  the  United  States 
or  the  State  or  Territory  where  adverse  claimant  may  then 
be,  or  before  any  notary  public  of  such  State  or  Territory. 

SEC.  2.     That  applicants  for  mineral  patents,  if  residing 
beyond  the  limits  of  the  district  wherein  the  claim  is  situ-  f0 
ated,  may  make  any  oath   or  affidavit  required   for  proof  made- 
of  citizenship  before  the  clerk  of  any  court  of  record,  or 
before  any  notary  public  of  any  State  or  Territory. 

AX   ACT  To   exclude   the   public   lands   in  Alabama    from   the 
operation  of  the  laws  relating  to  mineral  lands. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-  Alabama  ex- 
tives  of  the  United  States  of  America  in  Congress  assem-  f  hPe6  operation 
bled,  That  within  the  State  of  Alabama  all  public  lands  o**16  mineral 
whether  mineral  or  otherwise,  shall  be  subject  to  disposal 
only  as  agricultural  lands:  Provided,  however,  That  all 


Affidavit 


o  f 
o  m 


212  MINING  LAW 

lands  which  have  heretofore  been  reported  to  the  General 
Land  Office  as  containing  coal  and  iron  shall  first  be  offered 
at  public  sale:  And  provided  further,  That  any  bona  fide 
entry  under  the  provisions  of  the  homestead  law  of  lands 
within  said  State  heretofore  made  may  be  patented  with 
out  reference  to  an  act  approved  May  tenth,  eighteen  hun 
dred  and  seventy-two,  entitled  "An  act  to  promote  the 
development  of  the  mining  resources  of  the  United  States," 
in  cases  where  the  persons  making  application  for  such 
patents  have  in  all  other  respects  complied  with  the  home 
stead  law  relating  thereto. 

ATV  ACT  Providing  a  civil  government   for  Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled, 


Mining  laws  SEC.  8.  That  the  said  district  of  Alaska  is  hereby  created 
dVs  ???<!  t°  ^ol*  land  district,  and  a  United  States  land  office  for  said 
Alaska.  district  is  hereby  located  at  Sitka.  The  commissioner  pro 

vided  for  by  this  act  to  reside  at  Sitka  shall  be  ex-  officio 
register  of  said  land  office,  and  the  clerk  provided  for  by 
this  act  shall  be  ex  officio  receiver  of  public  moneys,  and 
the  marshal  provided  for  by  this  act  shall  be  ex  officio 
surveyor-general  of  said  district  and  the  laws  of  the  United 
States  relating  to  mining  claims,  and  the  rights  incident 
thereto  shall,  from  and  after  the  passage  of  this  act,  be  in 
full  force  and  effect  in  said  district,  under  the  administra 
tion  thereof  herein  provided  for,  subject  to  such  regula 
tions  as  may  be  made  by  the  Secretary  of  the  Interior,  ap 
proved  by  the  President:  Provided,  That  the  Indians  or 
other  persons  in  said  district  shall  not  be  disturbed  in  the 
possession  of  any  lands  actually  in  their  use  or  occupa 
tion  or  now  claimed  by  them,  but  the  terms  under  which 
such  persons  may  acquire  title  to  such  lands  is  reserved 
for  future  legislation  by  Congress:  And  provided  further, 
That  parties  who  have  located  mines  or  mineral  privileges 


ACTS  OF  CONGRESS  213 

therein  under  the  laws  of  the  United  States  applicable  to 
the  public  domain,  or  who  have  occupied  and  improved  or 
exercised  acts  of  ownership  over  such  claims,  shall  not  be 
disturbed  therein,  but  shall  be  allowed  to  perfect  their  title 
to  such  claims  by  payment  as  aforesaid:  And  provided 
also,  That  the  land  not  exceeding  six  hundred  and  forty 
acres  at  any  station  now  occupied  as  missionary  stations 
among  the  Indian  tribes  in  said  section,  with  the  improve 
ments  thereon  erected  by  or  for  such  societies,  shall  be 
continued  in  the  occupancy  of  the  several  religious  societies 
to  which  said  missionary  stations  respectively  belong  until 
action  by  Congress.  But  nothing  contained  in  this  act 
shall  be  construed  to  put  in  force  in  said  district  the  gen 
eral  land  laws  of  the  United  States. 

AX  ACT  Making  appropriations  for  sundry  civil  expenses  of 
the  Government  for  the  fiscal  year  ending  June  thirtieth, 
eighteen  hundred  and  ninety-one,  and  for  other  purposes. 

Be  it  enacted  ~by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled, 


No  person  who  shall  after  the  passage  of  this  act,  enter     Right  of   en- 
upon  any  of  the  public  lands  with  a  view  to  occupation, 


entry,  or  settlement  under  any  of  the  land  laws  shall  be  restricted       *  ° 

320   acres.    (Re- 
permitted  to  acquire  title  to  more  than  three  hundred  and  pealed,    see   act 

twenty  acres  in  the  aggregate,  under  all  of  said  laws,  but^r'173y 

this  limitation  shall  not  operate  to  curtail  the  right  of  any      Reservat  i  o  n 

in     patents     for 
person   who    has   heretofore   made   entry   or   settlement   on  right     of     way 


the  public  lands,  or  whose  occupation,  entry  or  settlement,   ° 

is  validated  by  this  act:    Provided,  That  in  all  patents  for  structed. 

lands  hereafter  taken   up  under  any   of  the  land  laws  of 

the   United    States   or   on    entries    or   claims   validated   by 

this  act  west  of  the  one  hundredth  meridian  it  shall  be  ex 

pressed  that  there  is  reserved  from  the  lands  in  said  pat 

ent  described  a  right  of  way  thereon  for  ditches  or  canals 

constructed  by  the  authority  of  the  United  States.     *     *     * 


214  MINING  LAW 

AN    ACT    To    repeal    the   timber-culture    laws,    and    for    other 
purpose**. 

Be  it  enacted  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled, 

****** 

Town  sites  on      SEC.    16.      That   town-site   entries    may   be    made    by    in- 
corporated  towns  and  cities  on   the  mineral  lands  of  the 


Lands     en-  United    States,    but    no    title    shall    be    acquired    by    such 
tered   under  the 
mineral    l  a  w  s  towns  or  cities  to  any  veins  of  gold,  silver,  cinnabar,  cop- 

to  Per>    or   lead>   or   to    any    valid    mininS   claim    or   Possession 


320  acres.  held    under   existing   law.      When   mineral    veins   are   pos 

sessed  within  the  limits  of  an  incorporated  town  or  city, 
and  such  possession  is  recognized  by  local  authority  or 
by  the  laws  of  the  United  States,  the  title  to  town  lots 
shall  be  subject  to  such  recognized  possession  and  the 
necessary  use  thereof,  and  when  entry  has  been  made  or 
patent  issued  for  such  town  sites  to  such  incorporated 
town  or  city,  the  possessor  of  such  mineral  vein  may  enter 
and  receive  patent  for  such  mineral  vein,  and  the  surface 
ground  appertaining  thereto:  Provided,  That  no  entry 
shall  be  made  by  such  mineral-vein  claimant  for  surface 
ground  where  the  owner  or  occupier  of  the  surface  ground 
shall  have  had  possession  of  the  same  before  the  inception 
of  the  title  of  the  mineral-vein  applicant. 

SEC.  17.  That  reservoir  sites  located  or  selected  and  to 
be  located  and  selected  under  the  provisions  of  "An  act 
making  appropriations  for  sundry  civil  expenses  of  the 
Government  for  the  fiscal  year  ending  June  thirtieth, 
eighteen  hundred  and  eighty-nine,  and  for  other  purposes," 
and  amendments  thereto,  shall  be  restricted  to  and  shall 
contain  only  so  much  land  as  is  actually  necessary  for  the 
construction  and  maintenance  of  reservoirs,  excluding  so 
far  as  practicable  lands  occupied  by  actual  settlers  at  the 
date  of  the  location  of  said  reservoirs,  and  that  the  pro 
visions  of  "An  act  making  appropriations  for  sundry  civil 
expenses  of  the  Government  for  the  fiscal  year  ending  June 


ACTS  OF  CONGRESS  215 

thirtieth,  eighteen  hundred  and  ninety-one,  and  for  other 
purposes,"  which  reads  as  follows,  viz:  "No  person  who 
shall  after  the  passage  of  this  act  enter  upon  any  of  the 
public  lands  with  a  view  to  occupation,  entry,  or  settle 
ment  under  any  of  the  land  laws  shall  be  permitted  to 
acquire  title  to  more  than  three  hundred  and  twenty  acres 
in  the  aggregate  under  all  said  laws,"  shall  be  construed  to 
include  in  the  maximum  amount  of  lands  the  title  to  which 
is  permitted  to  be  acquired  by  one  person  only  agricultural 
lands  and  not  include  lands  entered  or  sought  to  be  en 
tered  under  mineral  land  laws. 


AN  ACT  To  authorize  the  entry  of   hinds  chiefly  valuable  for 
building,  .stone  under  the  placer  mining:  laws. 

Be  it  enacted  by  the  Senate  and  House  of  Reyresenta-      Entry     of 
tives  of  tlie  United  States  of  America  in  Congress  assem-  y^1}  u  able  16for 
bled,  That  any  person  authorized  to  enter  lands  under  the  building     st°Jie 
mining  laws  of.  the  United  States  may  enter  lands  that  are  placer  -  mining 
chiefly  valuable  for  building  stone  under  the  provisions  of  aws' 
the  law  in  relation  to  placer  mineral  claims:  Provided,  That 
lands    reserved    for   the   benefit   of   the    public    schools    or 
donated  to  any  State  shall  not  be  subject  to  entry  under 
this  act. 

AN  ACT  To  amend  section  numbered  twenty-three  hundred 
and  twenty-four  of  the  Revised  Statutes  of  the  United 
States  relating*  to  mining:  claims. 

Be  it  enacted   by  the  Senate  and  House  of  Representa-       Requirement 

of  proof  of  ex- 
tives  of  the  United  States  of  America  in  Congress  assem-  penditure     for 

bled,   That  the   provisions    of    section    numbered    twenty-  *|}|  endued    1|x- 
three    hundred    and    twenty-four    of    the    Revised    Statutes  cept     as     to 
of  the   United   States,   which    require   that   on   each   claim S( 
located  after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,    and    until    patent   has    been    issued   therefor, 
not  less  than  one  hundred  dollars'  worth  of  labor  shall  be 
performed    or   improvements    made    during    each    year,    be 
suspended    for    the    year    eighteen    hundred    and    ninety- 


216  MINING  LAW 

three,  so  that  no  mining  claim  which  has  been  regularly 
located  and  recorded  as  required  by  the  local  laws  and 
mining  regulations  shall  be  subject  to  forfeiture  for  non- 
performance  of  the  annual  assessment  for  the  year  eight 
een  hundred  and  ninety-three:  Provided,  That  the  claim 
ant  or  claimants  of  any  mining  location,  in  order  to  se 
cure  the  benefits  of  this  act  shall  cause  to  be  recorded  in 
the  office  where  the  location  notice  or  certificate  is  filed  on 
or  before  December  thirty-first,  eighteen  hundred  and 
ninety-three,  a  notice  that  he  or  they,  in  good  faith  intend 
to  hold  and  work  said  claim:  Provided,  however,  That 
the  provisions  of  this  act  shall  not  apply  to  the  State  of 
South  Dakota. 

This  act  shall  take  effect  from  and  after  its  passage. 

AN  ACT  To  amend  section  numbered  twenty-three  hundred 
and  twenty-four  of  the  Revised  Statutes  of  the  United 
States  relating  to  mining  claims. 

Requirement     Be  it  enacted  by  the  Senate  and  House  of  Representa- 
pinditule°ffeortives  °f  the  United  States  of  America  in  Congress  assem- 
the    year    1894  ~bled,  That  the  provisions  of  section  numbered  twenty-three 
suspen  e  ^    e^x-  jlun^re(j   an(j  twenty-four  of  the  Revised   Statutes   of  the 
South     Dakota.  United   States,   which   require  that  on   each  claim   located 
after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,   and   until   patent  has  been   issued  therefor,  not  less 
than    one   hundred   dollars'    worth   of   labor   shall   be   per 
formed  or  improvements  made  during  each  year,  be  sus 
pended  for  the  year  eighteen  hundred  and  ninety-four,  so 
that  no  mining  claim  which  has  been  regularly  located  and 
recorded  as  required  by  the  local  laws  and  mining  regula 
tions  shall  be  subject  to  forfeiture  for  non-performance  of 
the  annual  assessment  for  the  year  eighteen  hundred  and 
ninety-four:     Provided,  That  the  claimant  or  claimants  of 
any  mining  location,  in  order  to  secure  the  benefits  of  this 
act,  shall  cause  to  be  recorded  in  the  office  where  the  loca 
tion   notice   or   certificate   is   filed   on   or  before   December 
thirty-first,  eighteen  hundred  and  ninety-four,  a  notice  that 
he  or  they  in  good  faith  intend  to  hold  and  work  said  claim: 


ACTS  OF  CONGRESS  217 

Provided,   however,   That  the  provisions  of  this  act  shall 
not  apply  to  the  State  of  South  Dakota. 

SEC.  2.  That  this  act  shall  take  effect  from  and  after  its 
passage. 

AN  ACT  Making  appropriations  for  current  and  contingent 
expenses  of  the  Indian  Department  and  fulfilling  treaty 
stipulations  with  various  Indian  tribes  for  the  fiscal  year 
ending  June  thirtieth,  eighteen  hundred  and  ninety-six, 
and  for  other  purposes. 

[WICHITA  LANDS,  OKLAHOMA.] 

Be  it  enacted  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled, 

****** 

The  said  Wichita  and  affiliated  bands  of  Indians  in  the  Lands  ceded 
Indian  Territory  hereby  cede,  convey,  transfer,  relinquish, 
forever  and  absolutely,  without  any  reservation  whatever, 
all  their  claim,  title  and  interest  of  every  kind  and  char 
acter  in  and  to  the  lands  embraced  in  the  following-de 
scribed  tract  of  country  in  the  Indian  Territory,  to  wit: 

Commencing  at  a  point  in  the  middle  of  the  main  chan 
nel  of  the  Washita  River,  where  the  ninety-eighth  meridian 
of  west  longitude  crosses  the  same,  thence  up  the  middle 
of  the  main  channel  of  said  river  to  the  line  of  ninety- 
eight  degrees  forty  minutes  west  longitude,  thence  on  said 
line  of  ninety-eight  degrees  forty  minutes  due  north  to 
the  middle  of  the  channel  of  the  main  Canadian  River, 
thence  down  the  middle  of  said  main  Canadian  River  to 
where  it  crosses  the  ninety-eighth  meridian,  thence  due 
south  to  the  place  of  beginning. 


That  the  laws  relating  to  the  mineral  lands  of  the  United      Miner 
States   are  hereby   extended   over  the   lands   ceded   by   the laws- 
foregoing  agreement. 


218  MINING  LAW 

AN  ACT  Making  appropriations  for  current  anil  contingent 
expenses  of  the  Indian  Department  and  fulfilling  treaty 
stipulations  with  various  Indian  tribes  for  the  fiscal  year 
ending  June  thirtieth,  eighteen  hundred  and  ninety-seven, 
and  for  other  purposes. 

****** 

[FORT  BELKNAP  INDIAN  RESERVATION,  MONTANA.] 
SEC.  8. 


That  upon  the  filing  in  the  United  States  local  land 
office  for  the  district  in  which  the  lands  surrendered  by 
article  one  of  the  foregoing  agreement  are  situated,  of 
the  approved  plat  of  survey  authorized  by  this  section, 
the  lands  so  surrendered  shall  be  open  to  occupation,  loca 
tion,  and  purchase,  under  the  provisions  of  the  mineral- 
land  laws  only,  subject  to  the  several  articles  of  the  fore- 
Provisos.  going  agreement:  Provided,  That  said  lands  shall  be  sold 

Price.  ^    at  ten  dollars  per  acre:     And  Provided  further,  That  the 

prior    to    open-  terms  of  this  section  shall  not  be  construed  to  authorize 
ing-  the  occupancy  of  said  lands  for  mining  purposes  prior  to 

the  date  of  filing  said  approved  plat  of  survey.     *     *     * 

[BLACKFEET    INDIAN    RESERVATION,    MONTANA.] 
SEC.    9. 


That  upon  the  filing  in  the  United  States  local  land 
office  for  the  district  in  which  the  lands  surrendered  by 
article  one  of  the  foregoing  agreement  are  situated,  of 
the  approved  plat  of  survey  authorized  by  this  section,  the 
lands  so  surrendered  shall  be  opened  to  occupation,  loca 
tion,  and  purchase  under  the  provisions  of  the  mineral- 
land  laws  only,  subject  to  the  several  articles  of  the  fore- 
Proviso.  going  agreement:  Provided,  That  the  terms  of  this  section 

No  occupancy  shall  not  be  construed  to  authorize  occupancy  of  said  lands 
prk>r          open-for  mining  purposes  prior   to   the   date  of  filing  said   ap 
proved  plat  of  survey. 


ACTS  OF  CONGRESS  219 

[SAN  CARLOS  INDIAN  RESERVATION,  ARIZONA.] 
SEC.  10. 


That    upon    the    filing   in    the    United    States    local    land 
office  for  the  district  in  which  the  lands   surrendered  by 
article    one    of   the    foregoing   agreement    are    situated,    of 
the  approved  plat  of  survey  authorized  by  this  section,  the 
lands  so  surrendered  shall  be  opened  to  occupation,  loca 
tion,   and   purchase   under  the   provisions   of   the  mineral- 
land  laws  only,  subject  to  the  several  articles  of  the  fore 
going  agreement:     Provided,  That  the  terms  of  this  sec-     Provisos. 
tion  shall  not  be  construed  to  authorize  occupancy  of  said      No  occupancy 
lands  for  mining  purposes  prior  to  the  date  of  filing  said  ing. 
approved   plat  of  survey:     Provided,    however,    That    any       Preference 
person  who  in  good  faith  prior  to  the  passage  of  this  act  to  ^discoverers 
had  discovered  and  opened,  or  located,  a  mine  of  coal  or 
other  mineral,  shall  have  a  preference  right  of  purchase 
for  ninety   days  from   and  after  the  official   filing   in   the 
local  land  office  of  the  approved  plat  of  survey  provided 
for  by  this  section. 

AN  ACT  To  authorize  the  entry  ami  patenting  of  lands  con 
taining  petroleum  and  other  mineral  oils  under  the  placer 
mining  laws  of  the  United  States. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-     Entry    and 
tives  of  the  United  States  of  America  in  Congress  assem- 


bled.    That    any   person    authorized    to    enter    lands    under  in§;     petroleum 

and  other  min- 
the  mining  laws  of  the  United  States  may  enter  and  obtain  eral  oils  under 

patent  to  lands  containing  petroleum  or  other  mineral  oils,  ^ning  tews!  *~ 

and  chiefly  valuable  therefor,  under  the  provisions  of  the 

laws    relating   to   placer   mineral    claims:     Provided,   That 

lands    containing    such    petroleum    or    other    mineral    oils 

which    have    heretofore    been   filed    upon,    claimed,   or    im 

proved  as  mineral,  but  not  yet  patented,  may  be  held  and 

patented  under  the  provisions  of  this  act  the  same  as  if 

such  filing,  claim,  or  improvement  were  subsequent  to  the 

date  of  the  passage  hereof. 


220  MINING  LAW 

AN  ACT  Making:  appropriations  for  sundry  civil  expenses  of 
the  Government  for  the  fiscal  year  ending  June  thirtieth, 
eighteen  hundred  and  ninety-eight,  and  for  other  purposes. 

*  *  *  *  *  * 

All  public  lands  heretofore  designated  and  reserved  by 
the  President  of  the  United  States  under  the  provisions 
of  the  act  approved  March  third,  eighteen  hundred  and 
ninety-one,  the  orders  for  which  shall  be  and  remain  in 
full  force  and  effect,  unsuspended  and  unrevoked,  and  all 
public  lands  that  may  hereafter  be  set  aside  and  reserved 
as  public  forest  reserves  under  said  act,  shall  be  as  far  as 
practicable  controlled  and  administered  in  accordance  with 
tue  following  provisions: 
Forest  reser-  No  public  forest  reservation  shall  be  established,  except 

vations,      when  to  improve  and  protect  the  forest  within  the  reservation, 

to    be    e  s  t  a  b- 

lished.  or    for    the    purpose    of    securing    favorable    conditions    of 

water  flows,  and  to  furnish  a  continuous  supply  of  timber 
for  the  use  and  necessities  of  citizens  of  the  United  States; 
but  it  is  not  the  purpose  or  intent  of  these  provisions,  or 
of  the  act  providing  for  such  reservations,  to  authorize  the 
inclusion  therein  of  lands  more  valuable  for  the  mineral 
therein,  or  for  agricultural  purposes,  than  for  forest  pur 
poses. 


Use  of  tim-  The  Secretary  of  the  Interior  may  permit,  under  regu- 
setu'ers,  t  etc.  by  lations  to  be  prescribed  by  him,  the  use  of  timber  and  stone 
found  upon  such  reservations,  free  of  charge,  by  bona  fide 
settlers,  miners,  residents,  and  prospectors  for  minerals, 
for  firewood,  fencing,  buildings,  mining,  prospecting,  and 
other  domestic  purposes,  as  may  be  needed  by  such  per 
sons  for  such  purposes;  such  timber  to  be  used  within  the 
State  or  Territory,  respectively,  where  such  reservations 
may  be  located. 

Egress  and  Nothing  herein  shall  be  construed  as  prohibiting  the 
ttlrs68  w°*  h^n  eSress  or  ingress  of  actual  settlers  residing  within  the 
reserva  t  i  o  n  s,  boundaries  of  such  reservations,  or  from  crossing  the  same 

€itc 

to   and    from   their   property   or   homes;    and   such   wagon 


ACTS  OF  CONGRESS  221 

roads  and  other  improvements  may  be  constructed  thereon 
as  may  be  necessary  to  reach  their  homes  and  to  utilize 
their  property  under  such  rules  and  regulations  as  may  be 
prescribed  by  the  Secretary  of  the  Interior.  Nor  shall  any 
thing  herein  prohibit  any  person  from  entering  upon  such 
forest  reservations  for  all  proper  and  lawful  purposes,  in 
cluding  that  of  prospecting,  locating,  and  developing  the 
mineral  resources  thereof:  Provided,  That  such  persons 
comply  with  the  rules  and  regulations  covering  such  forest 
reservations. 


Upon  the  recommendation  of  the  Secretary  of  the  In-  Restorati  o  n 
terior,  with  the  approval  of  the  President,  after  sixty  days'  1  s  M  elf  ttutal 
notice  thereof,  published  in  two  papers  of  general  circula- 
tion  in  the  State  or  Territory  wherein  any  forest  reserva 
tion  is  situated,  and  near  the  said  reservation,  any  public 
lands  embraced  within  the  limits  of  any  forest  reservation 
which,  after  due  examination  by  personal  inspection  of  a 
competent  person  appointed  for  that  purpose  by  the  Sec 
retary  of  the  Interior,  shall  be  found  better  adapted  for 
mining  or  for  agricultural  purposes  than  for  forest  usage, 
may  be  restored  to  the  public  domain.  And  any  mineral 
lands  in  any  forest  reservation  which  have  been  or  which 
may  be  shown  to  be  such,  and  subject  to  entry  under 
the  existing  mining  laws  of  the  United  States  and  the  rules 
and  reg-ulations  applying  thereto,  shall  continue  to  be  sub 
ject  to  such  location  and  entry,  notwithstanding  any  pro 
visions  herein  contained. 

AN  ACT  Extending  the  homestead  laws  and  providing  for 
right  of  tvay  for  railroads  in  the  district  of  Alaska,  and 
for  other  purposes. 


Mining 

SEC.   13.    That  native-born   citizens  of  the   Dominion   of  rights  in  Alas- 
Canada  shall   be  accorded   in   said   district  of  Alaska  theborn° 
same  mining  rights  and  privileges  accorded  to  citizens  of  ?0fn  ^ 


222  MINING  LAW 

the  United  States  in  British  Columbia  and  the  Northwest 
Territory  by  the  laws  of  the  Dominion  of  Canada  or  the 
local  laws,  rules,  and  regulations;  but  no  greater  rights 
shall  be  thus  accorded  than  citizens  of  the  United  States, 
or  persons  who  have  declared  their  intention  to  become 
such,  may  enjoy  in  said  district  of  Alaska;  and  the  Secre 
tary  of  the  Interior  shall  from  time  to  time  promulgate 
and  enforce  rules  and  regulations  to  carry  this  provision 
into  effect. 

\  \    ACT   Making   further   provisions    for   a   civil   government 
for  Alaska,  and  for  other  purposes. 


What  record-  SEC.  15.  The  respective  recorders  shall,  upon  the  pay 
ment  of  the  fees  for  the  same  prescribed  by  the  Attorney- 
General,  record  separately,  in  large  and  well-bound  sep 
arate  books,  in  fair  hand: 

First.  Deeds,  grants,  transfers,  contracts  to  sell  or  con 
vey  real  estate  mortgages  of  real  estate,  releases  of  mort 
gages,  powers  of  attorney,  leases  which  have  been  acknowl 
edged  or  proved,  mortgages  upon  personal  property; 


Ninth.   Affidavits  of  annual  work  done  on  mining  claims; 
Tenth.    Notices  of  mining  location  and  declaratory  state 
ments; 

Eleventh.    Such  other  writings  as  are  required  or  per 
mitted  by  law  to  be  recorded,  including  the  liens  of  me- 
Proviso.  chanics,  laborers,  and   others:    Provided,   Notices   of   loca- 

M  i  n  i  n  g  tion    of    mining    claims    shall    be    filed    for    record    within 
ninety  days  from  the   date  of  the  discovery  of  the  claim 
described   in  the  notice,  and  all   instruments   shall  be  re- 
Btnfments6    re- corded  in  the  recording  district  in  which  the  property  or 
corded.  subject-matter  affected  by  the  instrument  is  situated,  and 

where  the  property  or  subject-matter  is  not  situated  in 
any  established  recording  district  the  instrument  affect 
ing  the  same  shall  be  recorded  in  the  office  of  the  clerk 
of  the  division  of  the  court  having  supervision  over  the 


ACTS  OF  CONGRESS 


223 


recording    division    in    which    such    property    or    subject- 
matter  is  situated. 


Records   at 
etc-'    le~ 


*  *  *  Provided,  Miners  in  any  organized  mining  dis-  Proviso. 
trict  may  make  rules  and  regulations  governing  the  re-  uiaUo^s^for  re 
cording  of  notices  of  location  of  mining  claims,  water  cording,  etc.  — 
rights,  flumes  and  ditches,  mill  sites  and  affidavits  of  labor, 
not  in  conflict  with  this  act  or  the  general  laws  of  the 
United  States;  and  nothing  in  this  act  shall  be  construed 
so  as  to  prevent  the  miners  in  any  regularly  organized 
mining  district  not  within  any  recording  district  estab 
lished  by  the  court  from  electing  their  own  mining  recorder 
to  act  as  such  until  a  recorder  therefor  is  appointed  by 
the  court:  Provided  further,  All  records  heretofore  regu- 
larly  made  by  the  United  States  commissioner  at  Dyea, 
Skagway,  and  the  recorder  at  Douglas  City,  not  in  conflict 
with  any  records  regularly  made  with  the  United  States 
commissioner  at  Juneau,  are  hereby  legalized.  And  all 
records  heretofore  made  in  good  faith  in  any  regularly 
organized  mining  district  are  hereby  made  public  records,' 
and  the  same  shall  be  delivered  to  the  recorder  for  the 
recording  district  including  such  mining  district  within 
six  months  from  the  passage  of  this  act. 

SEC.  26.    The  laws  of  the  United  States  relating  to  min- 
ing  claims,  mineral  locations,  and   rights  incident  thereto 
are  hereby  extended  to  the  district  of  Alaska:    Provided,    Provisos. 
That  subject  only  to  such  general  limitations  as  may  be    Gold,  etc.    Ex- 
necessary    to    exempt    navigation    from    artificial    obstruc-  Bering01Sea.  ° 
tions  all  land  and  shoal  water  between  low  and  mean  high 
tide  on  the  shores,  bays,  and  inlets  of  Bering  Sea,  within 
the  jurisdiction  of  the  United  States,  shall  be  subject  to 
exploration  and  mining  for  gold  and  other  precious  metals 
by    citizens    of   the    United    States,    or    persons    who    have 
legally  declared  their  intentions  to  become  such,  under  such  _  miners'     reg- 
reasonable  rules  and  regulations  as  the  miners  in  organ-  lations. 
ized  mining  districts  may   have   heretofore  made  or   may 
hereafter  make  governing  the  temporary  possession  thereof 


Mining  laws. 


224  MINING  LAW 

for  exploration  and  mining  purposes  until  otherwise  pro- 

—  not    to    con-  vided  by  law:    Provided  further,  That  the  rules  and  regu- 

eral  laws.  lations  established  by  the  miners  shall  not  be  in  conflict 

with   the   mining   laws   of  the   United   States;    and   no  ex 

clusive  permits  shall  be  granted  by  the  Secretary  of  Wai- 

authorizing   any    person    or   persons,   corporation,    or   com 

pany  to  excavate  or  mine  under  any  of  said  waters  below 

Exclusive  per-  low  tide,  and  if  such  exclusive  permit  has  been  granted  it 

void    etc.    mmeis  hereby  revoked  and  declared  null  and  void;  but  citizens 

of  the  United  States  or  persons  who  have  legally  declared 

their    intention   to    become   such    shall    have   the    right   to 

dredge  and  mine  for  gold  or  other  precious  metals  in  said 

waters,  below  low  tide,  subject  to  such  general  rules  and 

regulations  as  the  Secretary  of  War  may  prescribe  for  the 

preservation  of  order  and  the  protection  of  the  interests 

of  commerce;    such   rules  and  regulations  shall  not,  how 

ever,  deprive  miners  on  the  beach  of  the  right  hereby  given 

to  dump  tailings  into  or  pump  from  the  sea  opposite  their 

claims,  except  where  such  dumping  would  actually  obstruct 

Provision  re-  navigation;    and  the   reservation   of  a   roadway   sixty   feet 


serving^  ro^-  wide,  under  the  tenth  section  of  the  act  of  May  fourteenth, 

to   apply.  '  Vol.  eighteen    hundred    and   ninety-eight,    entitled    "An    act   ex 

tending   the   homestead    laws   and    providing   for    right   of 

way  for  railroads  in  the  district  of  Alaska,  and  for  other 

purposes,"  shah  not  apply  to  mineral  lands  or  town  sites. 


AN  ACT  To  ratify  an  agreement  with  the  I  ml  inns  of  the 
Fort  Hall  Reservation  in  Idaho,  and  making  appropria 
tions  to  carry  the  same  into  effect. 

[DISPOSITION  OF  COMANCHE,  KIOWA,  AND  APACHE  LANDS.] 


That  should  any  of  said  lands  allotted  to  said  Indians, 
or  opened  to  settlement  under  this  act,  contain  valuable 
mineral  deposits,  such  mineral  deposits  shall  be  open  to 
location  and  entry,  under  the  existing  mining  laws  of  the 


ACTS  OF  CONGRESS  225 

United  States,  upon  the  passage  of  this  act,  and  the  min 
eral  laws  of  the  United  States  are  hereby  extended  over 
said  lands. 


AX  ACT  Extending  the  mining  laws  to  saline  lands. 

Be  it   enacted   by  the  Senate  and  House  of  Representa-      Mining    laws 

extended    to  sa- 
tives  of  the  United  States  of  America  in  Congress  assem-  iine  lands. 

bled,  That  all  unoccupied  public  lands  of  the  United  States 
containing  salt  springs,  or  deposits  of  salt  in  any  form, 
and  chiefly  valuable  therefor,  are  hereby  declared  to  be 
subject  to  location  and  purchase  under  the  provisions  of 
the  law  relating  to  placer-mining  claims:  Provided,  That 
the  same  person  shall  not  locate  or  enter  more  than  one 
claim  hereunder. 

\  \  ACT  Making  appropriations  for  the  current  and  con- 
ii nt: cm  expenses  of  the  Indian  Department  and  for  ful 
filling  treaty  stipulations  with  various  Indian  tribes  for 
the  fiscal  year  ending  June  thirtieth,  nineteen  hundred  and 
three,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled, 

****** 

That    the    Secretary    of   the    Interior,    with    the   consent      Uintah    and 
thereto  of  the  majority  of  the  adult  male  Indians  of  theutes.6 

Uintah  and  the  White  River  tribes  of  Ute  Indians,  to  be  .    Allotment    of 

irrigable  land, 
ascertained  as   soon  as   practicable  by  an  inspector,  shall 

cause  to  be  allotted  to  each  head  of  a  family  eighty  acres 

of  agricultural  land  which  can  be  irrigated  and  forty  acres 

of   such   land   to   each  other  member   of   said   tribes,   said 

allotments  to  be  made  prior  to  October  first,  nineteen  hun-     -jjnal  lotted 

dred  and  three,  on  which  date  all  the  unallotted  lands  with-  lands     restored 

in  said  reservation  shall  be  restored  to  the  public  domain:  main?111 

Provided,   That  persons  entering  any  of  said   land   under     Provisos. 

the  homestead  law  shall  pay  therefor  at  the  rate  of  one     Home  stead 

cn  tries. 


226  MINING  LAW 

M  i  n  e  r  a  l  dollar  and  twenty-five  cents  per  acre:  And  provided  fur 
ther,  That  nothing  herein  contained  shall  impair  the  rights 
of  any  mineral  lease  which  has  been  approved  by  the  Sec 
retary  of  the  Interior,  or  any  permit  heretofore  issued  by 
direction  of  the  Secretary  of  the  Interior  to  negotiate  with 
said  Indians  for  a  mineral  lease;  but  any  person  or  com 
pany  having  so  obtained  such  approved  mineral  lease  or  such 
permit  to  negotiate  with  said  Indians  for  a  mineral  lease 
on  said  reservation,  pending  such  time  and  up  to  thirty 
days  before  said  lands  are  restored  to  the  public  domain 
as  aforesaid,  shall  have  in  lieu  of  such  lease  or  permit  the 
preferential  right  to  locate  under  the  mining  laws  not  to 
exceed  six  hundred  and  forty  acres  of  contiguous  mineral 
Raven  Min-  land,  except  the  Raven  Mining  Company,  which  may  in 
ing  Company.  Heu  of  itg  leage  locate  one  hundred  mining  claims  of  the 

character  of  mineral  mentioned  in  its  lease;   and  the  pro- 

Applicati  onceeds   of  the    sale   of   the   iands   so    restored    to   the   public 
of      pro  c  e  e  a  s 
from  sales.         domain  shall  be  applied,  first,  to  the  reimbursement  of  the 

United  States  for  any  moneys  advanced  to  said  Indians  to 
carry  into  effect  the  foregoing  provisions;  and  the  remain 
der,  under  the  direction  of  the  Secretary  of  the  Interior, 
shall  be  used  for  the  benefit  of  said  Indians. 


AN    ACT    Defining    what    shall    constitute    and    providing    for 
assessments   on  oil   mining   claims. 

Assess  m  e  n  t  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
of  1Q  "mf^  i  n°g^es  °f  the  United  States  of  America  in  Congress  assem- 
ciaims.  bled,  That  where  oil  lands  are  located  under  the  provisions 

of  title  thirty-two,  chapter  six,  Revised  Statutes  of  the 
United  States,  as  placer  mining  claims,  the  annual  assess 
ment  labor  upon  such  claims  may  be  done  upon  any  one  of 
a  group  of  claims  lying  contiguous  and  owned  by  the  same 
person  or  corporation,  not  exceeding  five  claims  in  all: 
Provided,  That  said  labor  will  tend  to  the  development  or 
to  determine  the  oil-bearing  character  of  such  contiguous 
claims. 


ACTS  OF  CONGRESS  227 

AN  ACT  Making:  appropriations  for  the  current  and  con 
tingent  expenses  of  the  Indian  Department  and  for  ful 
filling'  treaty  stipulations  with  various  Indian  tribes  for 
the  fiscal  year  ending;  June  thirtieth,  nineteen  hundred  and 
four,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled, 

****** 

That   in   the   lands   within  the  former  Uncompahgre    In-     Uncompahgre 
dian  Reservation,  in  the  State  of  Utah,  containing  gilson-  Ration.     Reser" 

ite,   asphaltum,   elaterite,   or   other  like   substances,   which       Mining 

claims      located 
were  reserved  from  location  and  entry  by  provision  in  the  On  prior  to  Jan. 

act  of   Congress   entitled    "An    act   making   appropriations1'  1891>  valid- 
for    the    current   and    contingent    expenses    of    the    Indian 
Department  and  for  fulfilling  treaty  stipulations  with  va 
rious  Indian  tribes,  for  the  fiscal  year  ending  June  thirtieth, 
eighteen    hundred    and    ninety-eight,    and    for    other    pur 
poses,"    approved    June    seventh,    eighteen    hundred    and 
ninety-seven,    all    discoveries    and    locations    of    any    such 
mineral  lands  by  qualified  persons  prior  to  January  first, 
eighteen  hundred  and  ninety-one,  not  previously  discovered 
and  located,  who  recorded  notices  of  such  discoveries  and 
locations    prior    to    January    first,    eighteen    hundred    and 
ninety-one,  either  in  the  State  of  Colorado,  or  in  the  office 
of  the  county  recorder  of  Uintah  County,  Utah,  shall  have 
all   the   force  and   effect   accorded  by   law  to   locations   of 
mining  claims  upon  the  public  domain.     All  such  locations 
may   hereafter   be   perfected,   and   patents   shall   be   issued     Patents  to  is- 
therefor    upon    compliance    with    the    requirements    of    the  ^ons™  etc.!°Cof 
mineral-land  laws,  provided  that  the  owners  of  such  loca-  claims, 
tions  shall  relocate  their  respective  claims  and  record  the 
same  in  the  office  of  the  county  recorder  of  Uintah  County, 

Utah,  within  ninety  days  after  the  passage  of  this  act.    All 

v*  1  &  1  m  s    lo- 
locations  of  any  such  mineral  lands  made  and  recorded  on  cated       after 

or    subsequent    to    January    first,    eighteen    hundred    and  VaiVd  '          ' ln 
ninety-one,  are  hereby  declared  to  be  null  and  void;    and 


228  MINING  LAW 

Sale  of  re-  the  remainder  of  the  lands  heretofore  reserved  as  afore- 
mineral  hinds?  sai(i  because  of  the  mineral  substances  contained  in  them, 
insofar  as  the  same  may  be  within  even-numbered  sections, 
shall  be  sold  and  disposed  of  in  tracts  not  exceeding  forty 
acres,  or  a  quarter  of  a  quarter  of  a  section,  in  such  man- 
Restrictions,  ner  and  upon  such  terms  and  with  such  restrictions  as 
may  be  prescribed  in  a  proclamation  of  the  President  of 
the  United  States  issued  for  that  purpose  not  less  than  one 
hundred  and  twenty  days  after  the  passage  of  this  act, 
and  not  less  than  ninety  days  before  the  time  of  sale  or 
disposal,  and  the  balance  of  said  lands  and  also  all  the 
mineral  therein  are  hereby  specifically  reserved  for  future 
action  of  Congress. 


AN  ACT  For  the  survey  and  allotment  of  lands  now  em 
braced  within  the  limit.*  of  the  Flathead  Indian  Reserva 
tion,  in  the  State  of  Montana,  and  the  sale  and  disposal 
of  all  surplus  lands  after  allotment. 

****** 


Class  ifica-      SEC.   5.     That  said  commissioners  shall   then   proceed  to 
n, 
lands. 


tion.    etc.,    o  f  personally  inspect  and  classify  and  appraise,  by  the  small 


est  legal  subdivisions  of  forty  acres  each,  all  of  the  re 
maining  lands  embraced  within  said  reservation.  In 
making  such  classification  and  appraisement  said  lands 
shall  be  divided  into  the  following  classes:  First,  agri 
cultural  land  of  the  first  class;  second,  agricultural  land 
of  the  second  class;  third,  timber  lands,  the  same  to  be 
lands  more  valuable  for  their  timber  than  for  any  other 
purpose;  fourth,  mineral  lands;  and  fifth,  grazing  lands. 


D  i  s  posal  of      SEC.  8.    That  when  said  commission  shall  have  completed 

lands.  tne   classification   and    appraisement   of   all    of   said    lands 

and  the  same  shall  have  been  approved  by  the  Secretary 

of  the   Interior,  the  land   shall   be   disposed   of  under  the 

provisions  of  the  homestead,  mineral,  and  town-site  laws 


ACTS  OF  CONGRESS  229 

of  the  United   States,   except  such   of  said   lands  as  shall 
have  been  classified  as  timber  lands,  and  excepting  sections      Timber  and 
sixteen  and  thirty-six  of  each  township,  which  are  hereby  Ixcepted. 
granted  to  the  State  of  Montana  for  school  purposes.  *  *  * 


SEC.  10.     That  only  mineral  entry  may  be  made  on  such      Mineral   land 
of    said    lands    as    said    commission    shall    designate    and 
classify   as    mineral    under   the   general    provisions    of   the 
mining  laws  of  the  United  States,  and  mineral  entry  may 
also  be  made  on  any  of  said  lands  whether  designated  by 
said  commission  as  mineral  lands  or  otherwise,  such  classi 
fication    by   said   commission   being   only    prima   facie   evi 
dence  of  the  mineral  or  nonmineral  character  of  the  same:      Proviso. 
Provided,    That   no    such    mineral    locations    shall    be   per-     Exceptions, 
mitted  upon  any  lands  allotted  in  severalty  to  an  Indian. 

AN  ACT  To  ratify  and  amend  an  agreement  with  the  Indian** 
of  the  Crow  Reservation,  in  Montana,  and  making  appro 
priations  to  carry  the  Name  into  effect. 


SEC.    5.  *  *  *  And   provided   further,   That   the   price   of      TOW  n-s  i  t  e 
said   lands   shall   be    four   dollars   per   acre,  when   entered  fannddsm  '  n  e  r  a  l 
under  the  homestead  laws.  *  *  *  Lands  entered  under  the 
town-site  and  mineral  land  laws  shall  be  paid  for  in  amount 
and  manner  as  provided  by  said  laws,  but  in  no  event  at  a 
less  price  than  that  fixed  herein  for  such  lands,  if  entered 
under  the  homestead  laws.  *  *  * 

AN  ACT  To  authorize  the  Male  and  disposition  of  surplus  or 
unallotted  lands  of  the  Yakima  Indian  Reservation,  in  the 
State  of  Washington. 


SEC.  3.     That  the  residue  of  the  lands  of  said  reservation      Appraisal    of 
— that  is,  the  lands  not  allotted  and  not  reserved — shall  be  J1  n,a  Hotted 
classified    under    the    direction    of    the    Secretary    of    the 
Interior   as    irrigable    lands,   grazing   lands,    timber    lands, 


230  MINING  LAW 

or  arid  lands,  and  shall  be  appraised  under  their  appro 
priate  classes  by  legal  subdivisions,  with  the  exception  of 
the  mineral  lands,  which  need  not  be  appraised,  and  the 
timber  on  the  lands  classified  as  timber  lands  shall  be 
appraised  separately  from  the  land.  The  basis  for-  the  ap 
praisal  of  the  timber  shall  be  the  amount  of  standing 
merchantable  timber  thereon,  which  shall  be  ascertained 
and  reported. 


Mineral      The  lands  classified  as  mineral  lands  shall  be  subject  to 

location  and  disposal  under  the  mineral-land  laws  of  the 

Provisos.  United  States:  Provided,  That  lands  not  classified  as  min- 

Lands  not  eral  may  also  be  located  and  entered  as  mineral  lands, 
mineral  lands,  subject  to  approval  by  the  Secretary  of  the  Interior  and 
conditioned  upon  the  payment,  within  one  year  from  the 
date  when  located,  of  the  appraised  value  of  the  lands 
per  acre  fixed  prior  to  the  date  of  such  location,  but  at 
not  less  than  the  price  fixed  by  existing  law  for  mineral 

Restriction.  lands:  Provided  further,  That  no  such  mineral  locations 
shall  be  permitted  on  any  lands  allotted  to  Indians  in 
severalty  or  reserved  for  any  purpose  as  herein  authorized. 

AN  ACT  To  ratify  anil  amend  an  agreement  with  the  Indian* 
residing  on  the  Shoshone  or  Wind  River  Indian  Reserva 
tion  in  the  State  of  Wyoming  and  to  make  appropriations 
for  carrying  the  same  into  effect. 


Open  ing   of      SEC.  2.     That  the  lands  ceded  to  the  United  States  under 
lands   to   entry.  the    gaid    agreement   shall    be   disposed    of    under   the    pro 
visions  of  the  homestead,  town-site,  coal,  and  mineral  land 
laws  of  the  United  States  and  shall  be  opened  to  settlement 
Proclamation.  and  entry  by  proclamation  of  the  President.     *     *     * 


Town-  site      *     *     *     Lands    entered    under   the   town-site,   coal,    and 
e?ai'  1111" mineral  land  laws  sna11  be  Paid  for  in  amount  and  man- 


ACTS  OF  CONGRESS  231 

ner  as  provided  by  said  laws.  Notice  of  location  of  all 
mineral  entries  shall  be  filed  in  the  local  land  office  of  the 
district  in  which  the  lands  covered  by  the  location  are 
situated,  and  unless  entry  and  payment  shall  be  made 
within  three  years  from  the  date  of  location  all  rights 
thereunder  shall  cease;  *  *  *  that  all  lands,  except  min 
eral  and  coal  lands,  herein  ceded  remaining  undisposed  of 
at  the  expiration  of  five  years  from  the  opening  of  said 
lands  to  entry  shall  be  sold  to  the  highest  bidder  for  cash 
at  not  less  than  one  dollar  per  acre  under  rules  and  regu 
lations  to  be  prescribed  by  the  Secretary  of  the  In 
terior.  *  *  * 

AN  ACT  To  authorize  the  sale  and  disposition  of  surplus  or 
unallotted  lands  of  the  diminished  Colville  Indian  Reser 
vation,  in  the  State  of  Washington,  and  for  other  purposes. 


SEC.  3.  That  upon  the  completion  of  said  allotments  to  Mineral 
said  Indians  the  residue  or  surplus  lands — that  is,  lands 
not  allotted  or  reserved  for  Indian  school,  agency,  or  other 
purposes — of  the  said  diminished  Colville  Indian  Reserva 
tion  shall  be  classified  under  the  direction  of  the  Secre 
tary  of  the  Interior  as  irrigable  lands,  grazing  lands,  tim 
ber  lands,  mineral  lands,  or  arid  lands,  and  shall  be  ap 
praised  under  their  oppropriate  classes  by  legal  subdi 
visions,  with  the  exception  of  the  lands  classed  as  mineral 
lands,  which  need  not  be  appraised,  and  which  shall  be 
disposed  of  under  the  general  mining  laws  of  the  United 
States. 

AN  ACT  Making  appropriations  for  the  current  and  con 
tingent  expenses  of  the  Indian  Department,  for  fulfilling 
treaty  stipulations  with  various  Indian  tribes,  and  for 
other  purposes,  for  the  fiscal  year  ending  June  thirtieth, 
nineteen  hundred  and  seven. 

[COEUB  D'ALENE  INDIAN  LANDS.] 

****** 


232  MINING  LAW 

Mineral     *     *     *     Provided  further,  That  the  general  mining  laws 

of  the  United  States  shall  extend  after  the  approval  of  this 

act  to  any  of  said  lands,  and  mineral  entry  may  be  made 

on  any  of  said  lands,  but  no  such  mineral  selection  shall  be 

permitted  upon  any  lands  allotted  in  severalty  to  the  In- 

Coal    and    Oildians:     Provided  further,  That  all  the  coal  or  oil  deposits 

de  p.  os  its     re-  in  or  under  the  lands  on  the  said  reservation  shall  be  and 

remain  the  property   of  the  United  States,  and  no  patent 

that   may   be   issued  under  the   provisions   of  this   or   any 

other  act  of  Congress  shall  convey  any  title  thereto.  *  *  * 

AN    ACT    To   amend    the    laws    governing    labor    or    Improve 
ments  upon  mining  claims  in  Alaska. 

Alaska.  Be  it  enacted  ~by  the  Senate  and  House  of  Representa- 

p  r  (Tv  eam  exits',  tives  of  the  United  States  of  America  in  Congress  assem- 
That    durinS   each   year   and    until   Patent   has   been 


issued  therefor,  at  least  one  hundred  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  on,  or 
for  the  benefit  or  development  of,  in  accordance  with  ex 
isting  law,  each  mining  claim  in  the  district  of  Alaska 

Filing  affl-  heretofore  or  hereafter  located.  And  the  locator  or  owner 
davits.  of  sucn  ciaim  or  some  other  person  having  knowledge  of 

the  facts  may  also  make  and  file  with  the  said  recorder  of 
the  district  in  which  the  claims  shall  be  situate  an  affidavit 
showing  the  performance  of  labor  or  making  of  improve 
ments  to  the  amount  of  one  hundred  dollars  as  aforesaid 
and  specifying  the  character  and  extent  of  such  work. 

Contents.  Such  affidavit  shall  set  forth  the  following:  First,  the 
name  or  number  of  the  mining  claims  and  where  situated; 
second,  the  number  of  days'  work  done  and  the  character 
and  value  of  the  improvements  placed  thereon;  third,  the 
date  of  the  performance  of  such  labor  and  of  making  im 
provements;  fourth,  at  whose  instance  the  work  was  done 
or  the  improvements  made;  fifth,  the  actual  amount  paid 
for  work  and  improvement,  and  by  whom  paid  when  the 
same  was  not  done  by  the  owner.  Such  affidavit  shall  be 


e  v    dnce  a<of  prima  facie  evidence  of  the  performance  of  such  work  or 


performance  ofmaking   of   sucn   improvements,    but   if   such    affidavits   be 
\voric,   etc. 


ACTS  OF  CONGRESS  233 

not  filed  within  the  time  fixed  by  this  act  the  burden  of 
proof  shall  be  upon  the  claimant  to  establish  the  perform-      Forfeiture, 
ance  of  such  annual  work  and  improvements.     And  upon 
failure  of  the  locator  or  owner  of  any  such  claim  to  comply  . 
with  the  provisions  of  this  act,  as  to  performance  of  work 
and  improvements,  such  claim  shall  become  forfeited  and 
open  to  location  by  others  as   if  no  location  of  the  same      Officer  before 
had  ever  been  made.     The  affidavits  required  hereby  may  Vits    may    be 
be  made  before  any  officer  authorized  to  administer  oaths,  m|^e.  ^       ^^ 
and  the  provisions  of  section  fifty-three  hundred  and  ninety- 5392,     5393,     p. 
two   and   fifty-three   hundred   and   ninety-three   of   the   Re 
vised  Statutes  are  hereby  extended  to  sucn  affidavits.    Said     Time    of    fii- 
affidavits   shall   be  filed   not   later   than   ninety   days   after In&- 
the  close  of  the  year  in  which  such  work  is  performed.  Fee. 

SEC.  2.  That  the  recorders  for  the  several  divisions  or 
districts  of  Alaska  shall  collect  the  sum  of  one  dollar  and 
fifty  cents  as  a  fee  for  the  filing,  recording,  and  indexing 
said  annual  proofs  of  work  and  improvements  for  each 
claim  so  recorded. 

AN  ACT  Authorizing  a  resurvey  of  certain  townships  in  the 
State  of  Wyoming,  and  for  other  purposes. 

[BITTER  ROOT  VALLEY,  MONTANA.] 

SEC.  11.  That  all  the  provisions  of  the  mining  laws  of  Mining  laws 
the  United  States  are  hereby  extended  and  made  applicable  lands, 
to  the  undisposed-of  lands  in  the  Bitter  Root  Valley,  State 
of  Montana,  above  the  mouth  of  the  Lo  Lo  Fork  of  the 
Bitter  Root  River,  designated  in  the  act  of  June  fifth, 
eighteen  hundred  and  seventy-two:  Provided,  That  all  min 
ing  locations  and  entries  heretofore  made  or  attempted 
to  be  made  upon  said  lands  shall  be  determined  by  the 
Department  of  the  Interior  as  if  said  lands  had  been  sub 
ject  to  mineral  location  and  entry  at  the  time  such  loca 
tions  and  entries  were  made  or  attempted  to  be  made: 
And  provided  further,  That  this  act  shall  not  be  appli 
cable  to  lands  withdrawn  for  administration  sites  for  use 
of  the  Forest  Service. 


234  MINING  LAW 

AN  ACT  For  relief  of  applicants   for  mineral  surveys. 

Repay  m  e  n  t  Be  it  enacted  ~by  the  Senate  and  House  of  Representa- 
r-^ves  °f  the  United  States  of  America  in  Congress  assem- 
bled,  That  the  Secretary  of  the  Treasury  be,  and  he  is 
hereby,  authorized  and  directed  to  pay,  out  of  the  moneys 
heretofore  or  hereafter  covered  into  the  Treasury  from 
deposits  made  by  individuals  to  cover  cost  of  work  per 
formed  and  to  be  performed  in  the  offices  of  the  United 
Sta'tes  surveyors-general  in  connection  with  the  survey  of 
mineral  lands,  any  excess  in  the  amount  deposited  over 
and  above  the  actual  cost  of  the  work  performed,  includ 
ing  all  expenses  incident  thereto  for  which  the  deposits 
were  severally  made  or  the  whole  of  any  unused  deposit; 
and  such  sums,  as  the  several  cases  may  be,  shall  be 
deemed  to  be  annually  and  permanently  appropriated  for 
that  purpose.  Such  repayments  shall  be  made  to  the 
person  or  persons  who  made  the  several  deposits,  or  to 
his  or  their  legal  representatives,  after  the  completion  or 
abandonment  of  the  work  for  which  the  deposits  were 
made,  and  upon  an  account  certified  by  the  surveyor-gen 
eral  of  the  district  in  which  the  mineral  land  surveyed,  or 
sought  to  be  surveyed  is  situated  and  approved  by  the 
Commissioner  of  the  General  Land  Office. 

AN  ACT  Extending  the  time  for  final  entry  of  mineral 
claims  within  the  Shoshone  or  Wind  River  Reservation  in 
Wyoming. 

Time  ex-  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
ingd  entry. mak" tives  °f  the  United  States  of  America  in  Congress  assem 
bled,  That  section  two  of  chapter  fourteen  hundred  and 
fifty-two  of  the  Statutes  of  the  Fifty-eighth  Congress 
(United  States  Statutes  at  Large,  volume  thirty-three, 
part  one),  being  "An  act  to  ratify  and  amend  an  agree 
ment  with  the  Indians  residing  on  the  Shoshone  or  Wind 
River  Indian  Reservation,  in  the  State  of  Wyoming,  and 
to  make  appropriations  to  carry  the  same  into  effect,"  be, 
and  the  same  is  hereby,  amended  so  that  all  claimants  and 


ACTS  OF  CONGRESS  235 

locators  of  mineral  lands  within  the  ceded  portion  of  said 
reservation  shall  have  five  years  from  the  date  of  location 
within  which  to  make  entry  and  payment  instead  of  three 
years,  as  now  provided  by  the  said  act. 

AN  ACT  Extending  the  time  in  which  to  file  adverse  claim* 
and  institute  adverse  suits  against  mineral  entries  in  the 
district  of  Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-      Time  extend- 
tives  of  the  United  States  of  America  in  Congress  assem-  adverse  miner- 
bled,  That  in  the  district  of  Alaska  adverse  claims  author-  A\a°  ££ i  m  s  *  n 
ized    and    provided    for    in    sections    twenty-three    hundred      Act   of   Con- 
and  twenty-five  and  twenty-three  hundred  and  twenty-six,  june  '7,  1910. 
United  States  Revised  Statutes,  may  be  filed  at  any  time 
during   the   sixty   days   period    of    publication    or    within 
eight  months  thereafter,  and  the  adverse  suits  authorized 
and    provided    for    in    section    twenty-three    hundred    and 
twenty-six,   United   States  Revised   Statutes,  may  be  insti 
tuted   at  any   time  within   sixty   days  after  filing  of  said 
claims  in  the  local  land  office. 


AN   ACT  To  authorize  the  President   of  the  United   States  to 
make   withdrawals    of   public   lands   in   certain   cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representa-      Tempo  r  a  r  y 

withdrawals  by 
tives  of  the  United  States  of  America  in  Congress  assem-  President     for 

bled,  That  the  President  may,  at  any  time  in  his  discre-  Fr°r7geation ,*  et cS; 
tion,  temporarily  withdraw  from  settlement,  location,  sale,  authorized, 
or  entry  any  of  the  public  lands  of  the  United  States  in-  gress,  approved 
eluding  the  district  of  Alaska,  and   reserve  the   same  for June  25-   191°- 
water-power   sites,    irrigation,    classification    of    lands,     or 
other  public  purposes  to  be  specified  in  the  orders  of  with 
drawals,    and   such   withdrawals   or   reservations    shall    re 
main  in  force  until  revoked  by  him  or  by  an  Act  of  Con 
gress. 

SEC.  2.     That  all  lands  withdrawn  under  the  provisions 
of  this  Act  shall  at  all  times  be  open  to  exploration,  dis- 


236  MINING  LAW 

covery,  occupation,  and  purchase,  under  the  mining  laws 
of  the  United  States,  so  far  as  the  same  apply  to  minerals 
other  than  coal,  oil,  gas,  and  phosphates:  Provided,  That 
the  rights  of  any  person  who,  at  the  date  of  any  order  of 
withdrawal  heretofore  or  hereafter  made,  is  a  bona  fide 
occupant  or  claimant  of  oil  or  gas-bearing  lands,  and 
who,  at  such  date,  is  in  diligent  prosecution  of  work 
leading  to  discovery  of  oil  or  gas,  shall  not  be  affected 
or  impaired  by  such  order,  so  long  as  such  occupant  or 
claimant  shall  continue  in  diligent  prosecution  of  said 
work:  And  provided  further,  That  this  Act  shall  not  be 
construed  as  a  recognition,  abridgment,  or  enlargement 
of  any  asserted  rights  or  claims  initiated  upon  any  oil 
or  gas-bearing  lands  after  any  withdrawal  of  such  lands 
made  prior  to  the  passage  of  this  Act:  And  provided 
further,  That  there  shall  be  excepted  from  the  force  and 
effect  of  any  withdrawal  made  under  the  provisions  of 
this  Act  all  lands  which  are,  on  the  date  of  such  with 
drawal,  embraced  in  any  lawful  homestead  or  desert-land 
entry  theretofore  made,  or  upon  which  any  valid  settle 
ment  has  been  made  and  is  at  said  date  being  maintained 
and  perfected  pursuant  to  law;  but  the  terms  of  this 
proviso  shall  not  continue  to  apply  to  any  particular  tract 
of  land  unless  the  entryman  or  settler  shall  continue  to 
comply  with  the  law  under  which  the  entry  or  settlement 
was  made:  And  provided  further,  That  hereafter  no  forest 
reserve  shall  be  created,  nor  shall  any  additions  be  made 
to  one  heretofore  created  within  the  limits  of  the  States 
of  Oregon,  Washington,  Idaho,  Montana,  Colorado,  or  Wyo 
ming,  except  by  Act  of  Congress. 

SEC.  3.  That  the  Secretary  of  the  Interior  shall  report 
all  such  withdrawals  to  Congress  at  the  beginning  of  its 
next  regular  session  after  the  date  of  the  withdrawals. 


ACTS  OF  CONGRESS 


237 


AN  ACT  To  protect  the  locator*  in  good  faith  of  oil  and  gas 
lands  who  shall  have  effected  an  actual  discovery  of  oil 
or  gas  on  the  public  lands  of  the  United  States,  or  their 
successors  in  interest. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives  of  the  United  States  of  America  in  Congress  assem- 
bled,  That  in  no  case  shall  patent  be  denied  to  or  for 
any  lands  heretofore  located  or  claimed  under  the  mining 
laws  of  the  United  States  containing  petroleum,  mineral 
oil,  or  gas  solely  because  of  any  transfer  or  assignment 
thereof  or  of  any  interest  or  interests  therein  ,  by  the 
original  locator  or  locators,  or  any  of  them,  to  any  quali 
fied  persons  or  person,  or  corporation,  prior  to  discovery 
of  oil  or  gas  therein,  but  if  such  claim  is  in  all  other 
respects  valid  and  regular,  patent  therefor  not  exceeding 
one  hundred  and  sixty  acres  in  any  one  claim  shall  issue 
to  the  holder  or  holders  thereof,  as  in  other  cases:  Pro 
vided,  however,  That  such  lands  were  not  at  the  time  of 
inception  of  development  on  or  under  such  claim  with 
drawn  from  mineral  entry. 


Protection  of 


of  con- 
a2PP!9iied 


REGULATIONS. 
NATURE  AND  EXTENT  OF  MINING  CLAIMS. 

1.  Mining  claims  are  of  two  distinct  classes:   Lode  claims  and 
placers. 

LODE   CLAIMS. 

2.  The  status  of  lode  claims  located  or  patented   previous  to 
the  10th  day  of  May,  1872,  is  not  changed  with  regard  to  their 
extent  along  the  lode  or  width  of  surface  but  the  claim  is  en 
larged  by  sections  2322  and  2328,  by  investing  the  locator,  his 
heirs  or  assigns,  with  the  right  to  follow,  upon  the  conditions 
stated   therein,   all   veins,   lodes,   or   ledges,   the   top   or   apex   of 
which  lies  inside  of  the  surface  lines  of  his  claim. 

3.  It    is    to   be    distinctly   understood,    however,    that    the   law 
limits  the  possessory  right  to  veins,  lodes,  or  ledges,  other  than 
the   one   named   in  the   original   location,   to   such   as   were    not 
adversely  claimed  on  May  10,  1812,  and  that  where  such  other 
vein  or  ledge  was  so  adversely  claimed  at  that  date  the  right 
of  the  party  so   adversely  claiming  is   in  no  way  impaired   by 
the  provisions   of  the  Revised   Statutes. 

4.  From  and  after  the  10th  May,  1872,  any  person  who   is  a 
citizen  of  the  United  States,  or  who  has  declared  his  intention 
to    become    a    citizen,    may    locate,    record,    and    hold    a    mining 
claim   of   fifteen   hundred   linear   feet   along   the   course   of   any 
mineral  vein   or  lode  subject  to  location;    or  an  association   of 
persons,   severally  qualified   as   above,  may  make  joint   location 
of  such   claim   of  fifteen   hundred  feet,   but   in   no   event   can   a 
location  of  a  vein  or  lode  made  after  the  10th  day  of  May,  1872, 
exceed  fifteen   hundred  feet  along  the  course  thereof,  whatever 
may  be  the  number  of  persons  composing  the  association. 

5.  With   regard  to   the  extent  of  surface  ground  adjoining   a 
vein  or  lode,   and  claimed  for  the  convenient  working  thereof, 
the  Revised  Statutes  provide  that  the  lateral  extent  of  locations 

239 


240  MINING  LAW 

of  veins  or  lodes  made  after  May  10,  1872,  shall  in  no  case 
exceed  three  hundred  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface,  and  that  no  such  surface  rights  shall  be 
limited  by  any  mining  regulations  to  less  than  twenty-five  feet 
on  each  side  of  the  middle  of  the  vein  at  the  surface,  except 
where  adverse  rights  existing  on  the  10th  May,  1872,  may  render 
such  limitation  necessary;  the  end  lines  if  such  claims  to  be 
in  all  cases  parallel  to  each  other.  Said  lateral  measurements 
can  not  extend  beyond  three  hundred  feet  on  either  side  of  the 
middle  of  the  vein  at  the  surface,  or  such  distance  as  is  allowed 
by  local  laws.  For  example:  400  feet  can  not  be  taken  on  one 
side  and  200  feet  on  the  other.  If,  however,  300  feet  on  each 
side  are  allowed,  and  by  reason  of  prior  claims  but  100  feet 
can  be  taken  on  one  side,  the  locator  will  not  be  restricted  to 
less  than  300  feet  on  the  other  side;  and  when  the  locator  does 
not  determine  by  exploration  where  the  middle  of  the  vein  at 
the  surface  is,  his  discovery  shaft  must  be  assumed  to  mark 
such  point. 

6.  By  the  foregoing  it  will   be  perceived  that  no  lode   claim 
located  after  the  10th  of  May,  1872,  can  exceed  a  parallelogram 
fifteen   hundred   feet   in    length    by   six   hundred   feet   in   width, 
but  whether  surface  ground  of  that  width  can  be  taken  depends 
upon  the  local  regulations  or  State  or  Territorial  laws  in  force 
in  the  several  mining  districts;   and  that  no  such  local  regula 
tions   or   State    or   Territorial    laws   shall   limit   a   vein   or   lode 
claim  to  less  than  fifteen  hundred  feet  along  the  course  thereof, 
whether  the  location  is  made  by  one  or  more  persons,  nor  can 
surface  rights  be  limited  to  less  than  fifty  feet  in  width  unless 
adverse   claims   existing  on   the  10th   day   of  May,   1872,   render 
such  lateral  limitation  necessary. 

7.  Locators  can  not  exercise  too  much  care  in  defining  their 
locations  at  the  outset,   inasmuch   as  the  law   requires  that  all 
records  of  mining  locations  made  subsequent  to   May   10,   1872, 
shall   contain   the   name  or  names   of  the  locators,   the   date   of 
the  location,  and  such  a  description  of  the  claim  or  claims  located, 
by   reference   to   some   natural   object   or   permanent  monument, 
as  will  identify  the  claim. 

8.  No    lode    claim    shall    be   located    until    after   the    discovery 


LAND  OFFICE  REGULATIONS  241 

of  a  vein  or  lode  within  the  limits  of  the  claim,  the  object  of 
which  provision  is  evidently  to  prevent  the  appropriation  of 
presumed  mineral  ground  for  speculative  purposes,  to  the  exclu 
sion  of  bona  fide  prospectors,  before  sufficient  work  has  been 
done  to  determine  whether  a  vein  or  lode  really  exists. 

9.  The  claimant  should,  therefore,  prior  to  locating  his  claim, 
unless   the  vein   can   be  traced  upon   the   surface,  sink   a  shaft 
or  run  a  tunnel  or  drift  to  a  sufficient  depth  therein  to  discover 
and    develop    a   mineral-bearing    vein,    lode,    or    crevice;    should 
determine,  if  possible,  the  general  course  of  such  vein  in  either 
direction  from  the  point  of  discovery,  by  which  direction  he  will 
be   governed    in   marking   the   boundaries    of   his    claim    on   the 
surface.     His  location  notice  should  give  the  course  and  distance 
as  nearly  as  practicable  from  the  discovery  shaft  on  the  claim 
to  some  permanent,  well-known  points  or  objects,  such,  for  in 
stance,    as    stone    monuments,    blazed    trees,    the    confluence    of 
streams,    point   of   intersection    of   well-known    gulches,    ravines, 
or    roads,    prominent   buttes,    hills,    etc.,    which    may   be    in    the 
immediate  vicinity,  and  which  will  serve  to  perpetuate  and  fix 
the  locus  of  the  claim  and  render  it  susceptible  of  identification 
from   the   description   thereof   given   in    the   record   of  locations 
in  the  district,  and  should  be  duly  recorded. 

10.  In    addition    to    the    foregoing    data,    the    claimant    should 
state  the  names  of  adjoining  claims,  or,  if  none  adjoin,  the  rela 
tive    positions    of    the   nearest    claims;    should   drive   a   post   or 
erect  a  monument  of  stones  at  each  corner  of  his  surface  ground, 
and   at  the  point  of   discovery  or   discovery   shaft  should  fix  a 
post,  stake,  or  board,  upon  which  should  be  designated  the  name 
of   the   lode,   the   name   or   names   of   the   locators,    the   number 
of  feet  claimed,  and  in  which  direction  from  the  point  of  dis 
covery,    it    being    essential    that    the    location    notice    filed    for 
record,   in    addition    to    the    foregoing    description,    should    state 
whether   the   entire   claim   of  fifteen   hundred    feet   is   taken   on 
one  side  of  the  point  of  discovery,  or  whether  it  is  partly  upon 
one  and   partly  upon  the  other  side  thereof,  and  in  the  latter 
case,  how  many   feet  are  claimed   upon   each   side  of  such   dis 
covery  point. 

11.  The    location    notice    must   be    filed    for    record    in    all    re- 


242  MINING  LAW 

spects   as   required   by   the   State   or   Territorial   laws   and   local 
rules  and  regulations,  if  there  be  any. 

12.  In   order  to   hold   the   possessory   title   to   a  mining   claim 
located  prior  to  May  10,  1872,  the  law  requires  that  ten  dollars 
shall  be  expended  annually  in  labor  or  improvements  for  each 
one   hundred  feet  in   length  along  the  vein  or  lode.     In   order 
to  hold  the  possessory  right  to  a  location  made  since  May  10, 
1872,   not  less   than  one  hundred   dollars'   worth   of  labor  must 
be  performed  or  improvements  made  thereon  annually.     Under 
the  provisions  of  the  act  of  Congress  approved  January  22,  1880, 
the  first  annual  expenditure  becomes  due  and  must  be  performed 
during  the  calendar  year  succeeding  that  in  which  the  location 
was  made.     Where  a  number  of  contiguous  claims  are  held  in 
common,  the  aggregate  expenditure  that  would  be  necessary  to 
hold  all  the  claims,  may  be  made  upon  any  one  claim.     Corner 
ing  locations  are  held  not  to  be  contiguous. 

13.  Failure  to  make  the  expenditure  or  perform  the  labor  re 
quired  upon  a  location  made  before  or  since  May  10,  1872,  will 
subject   a   claim   to   relocation,    unless   the   original   locator,   his 
heirs,  assigns,  or  legal  representatives  have  resumed  work  after 
such   failure  and  before   relocation. 

14.  Annual   expenditure   is   not   required   subsequent  to   entry, 
the   date   of  issuing  the   patent   certificate   being  the   date  con 
templated  by  statute. 

15.  Upon  the  failure  of  any  one  of  several  co-owners  to  con 
tribute   his    portion    of    the    required    expenditures,    the    co-own 
ers,  who  have  performed  the  labor  or  made  the  improvements 
as   required,  may,  at  the  expiration  of  the  year,  give  such  de 
linquent  co-owner  personal  notice  in  writing,  or  notice  by  pub 
lication   in   the   newspaper   published   nearest   the   claim   for   at 
least  once  a  week  for  ninety  days;    and  if  upon  the  expiration 
of  ninety  days  after  such  notice  in  writing,  or  upon  the  expira 
tion  of  one  hundred  and  eighty  days  after  the  first  newspaper 
publication  of  notice,  the  delinquent  co-owner  shall  have  failed 
to  contribute  his   proportion  to  meet  such  expenditures  or  im 
provements,  his  interest  in  the  claim  by  law  passes  to  his  co- 
owners   who   have   made   the   expenditures    or   improvements   as 


LAND  OFFICE  REGULATIONS  243 

aforesaid.  Where  a  claimant  alleges  ownership  of  a  forfeited 
interest  under  the  foregoing  provision,  the  sworn  statement  of 
the  publisher  as  to  the  facts  of  publication,  giving  dates  and 
a  printed  copy  of  the  notice  published,  should  be  furnished,  and 
the  claimant  must  swear  that  the  delinquent  coowner  failed 
to  contribute  his  proper  proportion  within  the  period  fixed  by 
the  statute. 

TUNNELS. 

16.  The  effect  of  section  2323,  Revised  Statutes,  is  to  give  the 
proprietors  of  a  mining  tunnel  run  in  good  faith  the  possessory 
right  to  fifteen  hundred  feet  of  any  blind  lodes  cut,  discovered, 
or  intersected  by  such  tunnel,  which  were  not  previously  known 
to  exist,  within  three  thousand   feet  from  the  face  or  point  of 
commencement    of   such    tunnel,   and    to    prohibit   other   parties, 
after    the    commencement    of   the    tunnel,    from    prospecting    for 
and  making  locations  of  lodes  on  the  line  thereof  and  within 
said   distance  of  three  thousand  feet,   unless  such   lodes  appear 
upon  the  surface  or  were  previously  known  to  exist.     The  term 
"face,"  as  used  in  said  section,  is  construed  and  held  to  mean 
the  first  working  face  formed  in  the  tunnel,  and  to  signify  the 
point  at  which  the  tunnel  actually  enters  cover;    it  being  from 
this  point  that  the  three  thousand  feet  are  to  be  counted  upon 
which  prospecting  is  prohibited  as  aforesaid. 

17.  To  avail  themselves  of  the  benefits  of  this  provision  of  law, 
the  proprietors  of  a  mining  tunnel  will  be  required,  at  the  time 
they   enter   cover   as    aforesaid,    to   give   proper   notice   of   their 
tunnel  location  by  erecting  a  substantial  post,  board,  or  monu 
ment  at  the  face  or  point  of  commencement  thereof,  upon  which 
should  be  posted  a  good  and  sufficient  notice,  giving  the  names 
of  the  parties  or  company  claiming  the  tunnel  right;   the  actual 
or  proposed   course  or   direction   of  the   tunnel,   the  height  and 
width  thereof,  and  the  course  and  distance  from  such   face   or 
point  of  commencement  to  some  permanent  well-known  objects 
in    the    vicinity    by    which    to    fix    and    determine    the    locus    in 
manner  heretofore  set  forth  applicable  to  locations  of  veins  or 
lodes,    and   at   the    time   of   posting   such    notice   they    shall,   in 
order  that  miners  or  prospectors  may  be  enabled  to  determine 


244  MINING  LAW 

whether  or  not  they  are  within  the  lines  of  the  tunnel,  establish 
the  boundary  lines  thereof,  by  stakes  or  monuments  placed 
along  such  lines  at  proper  intervals,  to  the  terminus  of  the 
three  thousand  feet  from  the  face  or  point  of  commencement  of 
the  tunnel,  and  the  lines  so  marked  will  define  and  govern  as 
to  specific  boundaries  within  which  prospecting  for  lodes  not 
previously  known  to  exist  is  prohibited  while  work  on  the 
tunnel  is  being  prosecuted  with  reasonable  diligence. 

18.  A  full  and  correct  copy  of  such  notice  of  location  defining 
the  tunnel  claim  must  be  filed  for  record  with  the  mining  re 
corder   of   the   district,   to   which   notice   must   be   attached   the 
sworn    statement    or    declaration    of    the    owners,    claimants,    or 
projectors  of  such   tunnel,   setting  forth  the   facts  in  the  case; 
stating  the  amount  expended  by  themselves  and  their  predeces 
sors  in  interest  in  prosecuting  work  thereon;   the  extent  of  the 
work    performed,    and    that    it    is    bona   fide    their    intention    to 
prosecute    work    on    the   tunnel    so   located    and    described    with 
reasonable  diligence  for  the  development  of  a  vein  or  lode,  or 
for  the  discovery  of  mines,  or  both,  as  the  case  may  be.     This 
notice   of   location   must  be   duly    recorded,   and,   with   the    said 
sworn  statement  attached,  kept  on  the  recorder's  files  for  future 
reference. 

PLACER   CLAIMS. 

19.  But    one    discovery    of    mineral    is    required    to    support    a 
placer  location,  whether  it  be  of  twenty  acres  by  an  individual, 
or  of  one  hundred  and  sixty  acres  or  less  by  an  association  of 
persons. 

20.  The  act  of  August  4,  1892,  extends  the  mineral-land  laws 
so  as  to  bring  lands  chiefly  valuable  for  building  stone  within 
the  provisions  of  said  law  by  authorizing  a  placer  entry  of  such 
lands.     Registers  and  receivers  should  make  a  reference  to  said 
act  on  the  entry  papers  in  the  case  of  all  placer  entries  made 
for  lands  containing  stone  chiefly  valuable  for  building  purposes. 
Lands  reserved  for  the  benefit  of  public  school?,  or  donated  to 
any  State  are  not  subject  to  entry  under  said  act. 

21.  The    act   of   February   11,   1897,   provides   for   the   location 
and    entry    of   public    lands   chiefly    valuable    for    petroleum    or 


LAND  OFFICE  REGULATIONS  245 

other  mineral  oils,  and  entries  of  that  nature  made  prior  to 
the  passage  of  said  act  are  to  be  considered  as  though  made 
thereunder. 

22.  By  section  2330  authority   is  given   for  subdividing  forty- 
acre    legal    subdivisions    into    ten-acre    tracts.      These    ten-acre 
tracts  should  be  considered  and  dealt  with  as  legal  subdivisions, 
and    an    applicant    having    a    placer    claim    which    conforms    to 
one  or  more  of  such  ten-acre  tracts,  contiguous  in  case  of  two 
or  more   tracts,   may  make   entry   thereof,   after  the   usual   pro 
ceedings,  without  further  survey  or  plat. 

23.  [Omitted.] 

24.  A  ten-acre  subdivision  may  be  described,   for  instance,   if 
situated  in  the  extreme  northeast  of  the  section,  as  the  "NB.  ^4 
of  the  NE.  14  of  the  NE.  y±"  of  the  section,  or,  in  like  manner, 
by    appropriate    terms,    wherever   situated;    but,    in    addition    to 
this    description,    the    notice   must   give    all    the    other   data   re 
quired  in   a  mineral   application,  by  which  parties  may  be  put 
on   inquiry  as   to  the  land   sought  to  be  patented.     The  proofs 
submitted    with   applications   must   show   clearly   the    character 
and  extent  of  the  improvements  upon  the  premises. 

25.  The  proof  of  improvements  must  show  their  value  to  be 
not   less   than .  five   hundred   dollars   and   that   they   were   made 
by  the  applicant  for  patent  or  his  grantors.     This  proof  should 
consist  of  the  affidavit  of  two  or  more  disinterested  witnesses. 
The    annual    expenditure    to    the    amount    of    $100,    required    by 
section   2324,   Revised   Statutes,   must   be   made   upon   placer   as 
well  as  lode  locations. 

26.  Applicants    for    patent    to    a    placer    claim,    who    are    also 
in  possession  of  a  known  vein   or  lode  included  therein,  must 
state   in    their   application    that    the    placer   includes    such    vein 
or   lode.     The   published  and   posted   notices   must   also   include 
such  statement.     If  veins  or  lodes  lying  within  a   placer  loca 
tion  are  owned  by  other  parties,  the  fact  should  be  distinctly 
stated  in  the  application  for  patent  and  in  all  the  notices.     But 
in  all  cases,  whether  the  lode  is  claimed  or  excluded,  it  must 
be  surveyed  and  marked  upon  the  plat,  the  field  notes  and  plat 
giving  the   area   of   the   lode   claim   or   claims   and   the  area   of 
the    placer    separately.      An    application    which    omits    to    claim 


246  MINING  LAW 

such  known  vein  or  lode  must  be  construed  as  a  conclusive  dec 
laration  that  the  applicant  has  no  right  of  possession  to  the 
vein  or  lode.  Where  there  is  no  known  lode  or  vein,  the  fact 
must  appear  by  the  affidavit  of  two  or  more  witnesses. 

27.  By  section  2330  it  is  declared  that  no  location  of  a  placer 
claim,   made  after  July   9,   1870,   shall   exceed  one  hundred   and 
sixty  acres  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  Surveys. 

28.  Section  2331  provides  that  all  placer-mining  claims  located 
after  May  10,  1872,  shall  conform  as  nearly  as  practicable  with 
the  United   States   system   of   public   land   surveys   and  the   rec 
tangular  subdivisions  of  such  surveys,  and  such  locations  shall 
not  include  more  than  twenty  acres  for  each  individual  claimant. 

29.  The    foregoing   provisions   of    law   are   construed    to    mean 
that   after  the   9th   day   of   July,   1870,   no   location   of   a   placer 
claim  can  be  made  to  exceed  one  hundred  and  sixty  acres,  what 
ever    may    be    the    number    of    locators    associated    together,    or 
whatever  the  local   regulations  of   the   district  may  allow;    and 
that  from  and  after  May  10,  1872,  no  location  can  exceed  twenty 
acres  for  each  individual  participating  therein;    that  is,  a  loca 
tion  by  two  persons  can  not  exceed  forty  acres,  and  one  by  three 
persons   can   not  exceed   sixty   acres. 

30.  The   regulations   hereinbefore  given    as   to   the  manner   of 
marking  locations  on  the  ground,  and  placing  the  same  on  rec 
ord,    must   be   observed   in   the   case   of   placer   locations  so   far 
as    the   same    are   applicable,    the    law    requiring,    however,   that 
all   placer-mining  claims  located  after  May  10,  1872,  shall  con 
form   as   near  as   practicable  with  the  United   States  system  of 
public   land   surveys   and   the   rectangular   subdivisions   of    such 
surveys,  whether  the  locations  are  upon  surveyed  or  unsurveyed 
lands. 

Conformity  to  the  public  land  surveys  and  the  rectangular 
subdivisions  thereof  will  not  be  required  where  compliance  with 
such  requirement  would  necessitate  the  placing  of  the  lines 
thereof  upon  other  prior  located  claims  or  where  the  claim  is 
surrounded  by  prior  locations. 

Where  a  placer  location  by  one  or  two  persons  can  be  en 
tirely  included  within  a  square  forty-acre  tract,  by  three  or 


LAND  OFFICE  REGULATIONS  247 

four  persons  within  two  square  forty-acre  tracts  placed  end  to 
end,  by  five  or  six  persons  within  three  square  forty-acre  tracts 
and  by  seven  or  eight  persons  within  four  square  forty-acre 
tracts,  such  locations  will  be  regarded  as  within  the  require 
ments  where  strict  conformity  is  impracticable. 

Whether  a  placer  location  conforms  reasonably  with  the  legal 
subdivisions  of  the  public  surveys  is  a  question  of  fact  to  be 
determined  in  each  case  and  no  location  will  be  passed  to 
patent  without  satisfactory  evidence  in  this  regard.  Claimants 
should  bear  in  mind  that  it  is  the  policy  of  the  Government 
to  have  all  entries  'whether  of  agricultural  or  mineral  lands 
as  compact  and  regular  in  form  as  reasonably  practicable,  and 
that  it  will  not  permit  or  sanction  entries  or  locations  which 
cut  the  public  domain  into  long  narrow  strips  or  grossly  irreg 
ular  or  fantastically  shaped  tracts.  (Snow  Flake  Fraction  Placer 
37  L.  D.,  250.) 

REGULATIONS    UNDER    SALINE    ACT. 

31.  Under   the   act  approved   January   31,   1901,   extending   the 
mining  laws  to  saline  lands,  the  provisions  of  the  law  relating 
to   placer-mining   claims   are   extended   to   all    States   and   Terri 
tories  and  the  district  of  Alaska,  so  as  to  permit  the  location 
and    purchase    thereunder   of    all    unoccupied    public    lands    con 
taining  salt  springs,  or  deposits  of  salt  in  any  form,  and  chiefly 
valuable  therefor,  with  the  proviso,  "That  the  same  person  shall 
not  locate  or  enter  more  than  one  claim  hereunder." 

32.  Rights  obtained  by  location  under  the  placer-mining  laws 
are    assignable,    and   the   assignee   may   make   the   entry    in   his 
own  name;  so,  under  this  act  a  person  holding  as  assignee  may 
make  entry  in  his  own  name:   Provided,  He  has  not  held  under 
this  act,  at  any  time,  either  as  locator  or  entryman,  any  other 
lands;    his    right   is    exhausted    by   having   held   under   this   act 
any    particular   tract,   either   as   locator   or   entryman,   either   as 
an   individual   or   as   a   member   of   an   association.      It   follows, 
theref ore,  f  that  no  application  for  patent  or  entry,  made  under 
this  act,  shall  embrace  more  than  one  single  location. 

33.  In   order  that   the  conditions   imposed   by   the   proviso,   as 
set  forth  in  the  above  paragraph,  may  duly  appear,  the  notice 


248  MINING  LAW 

of  location  presented  for  record  and  the  application  for  patent 
must  each  contain  a  specific  statement  under  oath  by  each  per 
son  whose  name  appears  therein  that  he  never  has,  either  as 
an  individual  or  as  a  member  of  an  association,  located  or  en 
tered  any  other  lands  under  the  provisions  of  this  act.  Assign 
ments  made  by  persons  who  are  not  severally  qualified  as  herein 
stated  will  not  be  recognized. 

PROCEDURE  TO  OBTAIN  PATENT  TO  MINERAL 
LANDS. 

LODE   CLAIMS. 

34.  The    claimant   is    required,    in    the    first   place,    to    have    a 
correct  survey  of   his   claim  made   under   authority   of  the   sur 
veyor-general  of  the  State  or  Territory  in  which  the  claim  lies, 
such  survey  to  show  with  accuracy  the  exterior  surface  bound 
aries    of   the   claim,    which    boundaries    are    required    to   be   dis 
tinctly  marked  by  monuments  on  the  ground.     Four  plats  and 
one   copy   of  the  original   field  notes   in   each   case   will  be  pre 
pared  by  the  surveyor-general;    one  plat  and  the  original  field 
notes  to  be  retained   in   the  office  of  the  surveyor-general;    one 
copy  of  the  plat  to  be  given  the  claimant  for  posting  upon  the 
claim ;    one  plat  and  a  copy   of  the  field  notes  to  be  given  the 
claimant  for  filing  with  the  proper  register,  to  be  finally  trans 
mitted   by   that  officer,   with   other   papers   in   the   case,   to   this 
office,   and   one   plat  to   be  sent  by   the   surveyor-general   to   the 
register  of  the  proper  land  district,  to  be  retained  on  his  files 
for  future  reference.     As  there  is  no   resident  surveyor-general 
for  the  State  of  Arkansas,  applications  for  the  survey  of  min 
eral  claims  in  said  State  should  be  made  to  the  Commissioner 
of  this  office,  who,  under  the  law,  is  ex  officio  the  U.  S.  surveyor- 
general. 

35.  The    survey    and    plat    of    mineral    claims    required    to    be 
filed  in  the  proper  land  office  with  application  for  patent  must 
be   made    subsequent    to    the    recording    of    the    location    of    the 
claim   (if  the  laws  of  the  State  or  Territory  or  the  regulations 
of    the    mining    district    require    the    notice    of    location    to    be 
recorded),   and   when   the  original   location   is   made   by   survey 


LAND  OFFICE  REGULATIONS  249 

of  a  United  States  mineral  surveyor  such  location  survey  can 
not  be  substituted  for  that  required  by  the  statute,  as  above 
indicated. 

36.  The  surveyors-general  should  designate  all  surveyed  min 
eral  claims  by  a  progressive  series  of  numbers,  beginning  with 
survey  No.  37,   irrespective  as  to  whether  they  are  situated  on 
surveyed   or   unsurveyed   lands,   the   claim    to    be   so   designated 
at   date   of  issuing  the  order  therefor,   in  addition  to  the  local 
designation    of   the   claim;    it   being   required    in   all    cases   that 
the  plat  and  field  notes  of  the  survey  of  a  claim  must,  in  addi 
tion  to  the  reference  to  permanent  objects  in  the  neighborhood, 
describe  the  locus   of  the  claim   with   reference  to  the  lines  of 
public  surveys  by  a  line  connecting  a  corner  of  the  claim  with 
the  nearest  public  corner  of  the  United  States  surveys,   unless 
such  claim  be  on  unsurveyed  lands  at  a  distance  of  more  than 
two    miles    from    such    public    corner,    in    which    latter    case    it 
should   be  connected   with  a  United    States   mineral   monument. 
Such  connecting  line  must  not  be  more  than  two  miles  in  length, 
and  should  be  measured  on  the  ground  direct  between  the  points, 
or  calculated  from  actually  surveyed  traverse  lines  if  the  nature 
of    the    country    should    not    permit   direct    measurement.      If    a 
regularly    established   survey    corner    is    within   two   miles    of   a 
claim   situated   on   unsurveyed   lands,   the   connection   should   be 
made   with   such   corner   in   preference   to   a   connection   with   a 
United    States    mineral    monument.       The     connecting     line     or 
traverse  line  must  be  surveyed  by  the  mineral  surveyor  at  the 
time  of  his  making  the  particular  survey  and  be  made  a  part 
thereof. 

37.  (a)   Promptly  upon  the  approval  of  a  mineral  survey  the 
surveyor-general  will  advise  both  this  office  and  the  appropriate 
local  land  office,  by  letter  (Form  4-286),  of  the  date  of  approval, 
number  of  the  survey,  name  and  area  of  the  claim,  name  and 
survey    number    of    each    approved    mineral    survey    with    which 
actually  in  conflict,  name  and  address  of  the  applicant  for  sur 
vey,  and  name  of  the  mineral  surveyor  who  made  the  survey; 
and   will   also  briefly   describe   therein   the   locus   of   the   claim, 
specifying  each  legal  subdivision  or  portion  thereof,  when  upon 
surveyed    lands,    covered    in    whole    or   in    part   by .  the   survey ; 


250  MINING  LAW 

but  hereafter  no  segregation  of  any  such  claim  upon  the  official 
township-survey  records  will  be  made  until  mineral  entry  has 
been  made  and  approved  for  patent,  unless  otherwise  directed 
by  this  office. 

(&)  Upon  application  to  make  agricultural  entry  of  the  residue 
of  any  original  lot  or  legal  subdivision  of  forty  acres,  reduced 
by  mining  claims  for  which  patent  applications  have  been  filed 
and  which  residue  has  been  already  reallotted  in  accordance 
therewith,  the  local  officers  will  accept  and  approve  the  appli 
cation  as  usual,  if  found  to  be  regular.  When  such  an  appli 
cation  is  filed  for  any  such  original  lot  or  subdivision,  reduced 
in  available  area  by  duly  asserted  mining  claims  but  not  yet 
relotted  accordingly,  the  local  officers  will  promptly  advise  this 
office  thereof;  and  will  also  report  and  identify  any  pending 
application  for  mineral  patent  affecting  such  subdivision  which 
the  agricultural  applicant  does  not  desire  to  contest.  The  sur 
veyor-general  will  thereupon  be  advised  by  this  office  of  such 
mining  claims,  or  portions  thereof,  as  are  proper  to  be  segre 
gated,  and  directed  to  at  once  prepare,  upon  the  usual  drawing- 
paper  township  blank,  diagram  of  amended  township  survey  of 
such  original  lot  or  legal  forty-acre  subdivision  so  made  frac 
tional  by  such  mineral  segregation,  designating  the  agricultural 
portion  by  appropriate  lot  number,  beginning  with  No.  1  in 
each  section  and  giving  the  area  of  each  lot,  and  will  forthwith 
transmit  one  approved  copy  to  the  local  land  office  and  one 
to  this  office.  In  the  meantime  the  local  officers  will  accept 
the  agricultural  application  (if  no ,  other  objection  appears), 
suspend  it  with  reservation  of  all  rights  of  the  applicant  if 
continuously  asserted  by  him,  and  upon  receipt  of  amended 
township  diagram  will  approve  the  application  (if  then  other 
wise  satisfactory)  as  of  the  date  of  filing,  corrected  to  describe 
the  tract  as  designated  in  the  amended  survey. 

(c)  The  register  and  receiver  will  allow  no  agricultural  claim 
for  any  portion  of  an  original  lot  or  legal  forty-acre  subdivision, 
where  the  reduced  area  is  made  to  appear  by  reason  of  ap 
proved  surveys  of  mining  claims  and  for  which  applications 
for  patent  have  not  been  filed,  until  there  is  submitted  by  such 
agricultural  applicant  a  satisfactory  showing  that  such  surveyed 


LAND  OFFICE  REGULATIONS  251 

claims  are  in  fact  mineral  in  character;  and  applications  to 
have  lands  asserted  to  be  mineral,  or  mining  locations,  segre 
gated  by  survey,  with  the  view  to  agricultural  appropriation  of 
the  remainder,  will  be  made  to  the  register  and  receiver  for 
submission  to  the  Commissioner  of  the  General  Land  Office,  for 
his  consideration  and  direction,  and  must  be  supported  by  the 
affidavit  of  the  party  in  interest,  duly  corroborated  by  two  or 
more  disinterested  persons,  or  by  such  other  or  further  evi 
dence  as  may  be  required  in  any  case,  that  the  lands  sought 
to  be  segregated  as  mineral  are  in  fact  mineral  in  character; 
otherwise,  in  the  absence  of  satisfactory  showing  in  any  such 
case,  such  original  lot  or  legal  subdivision  will  be  subject  to 
agricultural  appropriation  only.  When  any  such  showing  shall 
be  found  to  be  satisfactory  and  the  necessary  survey  is  had, 
amended  township  diagram  will  be  required  and  made  as  pre 
scribed  in  the  preceding  section. 

38.  The   following  particulars  should  be  observed  in  the  sur 
vey  of  every  mining  claim: 

(1)  The  exterior  boundaries  of  the  claim,  the  number  of  feet 
claimed   along  the   vein,   and,   as  nearly   as  can  be  ascertained, 
the   direction  of  the  vein,  and  the  number  of  feet  claimed  on 
the  vein  in  each  direction  from  the  point  of  discovery  or  other 
well-defined   place   on    the   claim   should   be   represented   on   the 
plat  of  survey  and  in  the  field  notes. 

(2)  The  intersection  of  the  lines  of  the  survey  with  the  lines 
of  conflicting  prior  surveys   should  be  noted  in  the  field  notes 
and  represented  upon  the  plat. 

(3)  Conflicts  with  unsurveyed  claims,  where  the  applicant  for 
surveys  does  not  claim  the  area  in  conflict,  should  be  shown  by 
actual  survey. 

(4)  The    total    area    of    the    claim    embraced    by    the    exterior 
boundaries  should  be  stated,  and  also  the  area  in  conflict  with 
each  intersecting  survey,  substantially  as  follows: 

Acres. 

Total   area   of   claim • 10.50 

Area  in  conflict  with  survey  No.  302 1.56 

Area  in  conflict  with  survey  No.  948 2.33 

Area   in   conflict  with   Mountain   Maid   lode  mining  claim, 

unsurveyed  1.48 


252  MINING  LAW 

It  does  not  follow  that  because  mining  surveys  are  required 
to  exhibit  all  conflicts  with  prior  surveys  the  areas  of  conflict 
are  to  be  excluded.  The  field  notes  and  plat  are  made  a  part 
of  the  application  for  patent,  and  care  should  be  taken  that 
the  description  does  not  inadvertently  exclude  portions  intended 
to  be  retained.  The  application  for  patent  should  state  the  por 
tions  to  be  excluded  in  express  terms. 

39.  The  claimant  is  then  required  to  post  a  copy  of  the  plat 
of  such  survey  in  a  conspicuous  place  upon  the  claim,  together 
with    notice    of    his    intention    to    apply    for    a    patent    therefor, 
which   notice   will   give   the    date    of   posting,    the  name   of   the 
claimant,  the  name  of  the  claim,  the  number  of  the  survey,  the 
mining   district   and   county,    and    the    names    of   adjoining   and 
conflicting  claims  as  shown  by  the  plat  survey.     Too  much  care 
can  not  be  exercised  in  the  preparation  of  this  notice,  inasmuch 
as  the  data  therein  are  to  be  repeated  in  the  other  notices  re 
quired  by  the  statute,  and  upon  the  accuracy  and  completeness 
of  these  notices  will  depend  in  a  great  measure,  the  regularity 
and  validity  of  the  proceedings  for  patent. 

40.  After  posting  the  said  plat  and  notice  upon  the  premises, 
the   claimant   will  file  with   the   proper  register  and   receiver  a 
copy  of  such  plat  and  the  field  notes  of  survey  of  the  claim, 
accompanied  by  the  affidavit  of  at  least  two  credible  witnesses 
that    such    plat   and   notice    are    posted    conspicuously    upon    the 
claim,   giving   the   date   and   place   of  such   posting;    a  copy   of 
the  notice  so  posted  to  be  attached  to  and  form  a  part  of  said 
affidavit. 

41.  Accompanying  the  field  notes  so  filed  must  be  the  sworn 
statement  of  the  claimant  that  he  has  the  possessory   right  to 
the   premises   therein    described,   in    virtue   of   a   compliance   by 
himself    (and  by   his  grantors,   if  he  claims  by  purchase)    with 
the  mining   rules,   regulations,  and  customs   of  the  mining  dis 
trict,  State,  or  Territory  in  which  the  claim  lies,  and  with  the 
mining    laws    of    Congress;     such    sworn    statement    to    narrate 
briefly,   but   as   Clearly   as  possible,   the   facts   constituting   such 
compliance,    the  origin   of   his   possession   and   the   basis  of   his 
claim   to   a  patent.     The  vein   or  lode  must  be  fully   described, 
the    description    to    include    a    statement    as    to    the    kind    and 


LAND  OFFICE  REGULATIONS  253 

character  of  mineral,  the  extent  thereof,  whether  ore  has  been 
extracted  and  of  what  amount  and  value  and  such  other  facts 
as  will  support  the  applicant's  allegation  that  the  claim  contains 
valuable  mineral  deposit. 

42.  This   sworn   statement   must   be   supported   by   a  copy   of 
each    location    notice,    certified    by    the    legal    custodian    of    the 
record  thereof,  and  also  by  an  abstract  of  title  of  each  claim, 
completed  to  the  date  of  filing  said  statement  and  certified  by 
the    legal   custodian   of  the   records  of   transfers,   or  by   a   duly 
authorized  abstracter  of  titles.     The  certificate  must  state  that 
no  conveyances  affecting  the  title  to  the  claim  or  claims  appear 
of  record  other  than  those  set  forth. 

Abstracters  will  be  required  to  attach  to  each  abstract  cer 
tified  by  them  a  certificate  stating  that  they  have  filed  in  the 
office  of  the  Commissioner  of  the  General  Land  Office  a  certified 
copy  of  the  existing  statute  by  which  they  are  authorized  to 
compile  abstracts  of  title,  and  evidence  in  the  form  of  a  cer 
tificate  by  the  proper  State,  Territorial,  or  county  officer  that 
they  have  complied  with  the  requirements  of  such  statute. 

43.  In  the  event  of  the  mining  records  in  any  case  having  been 
destroyed  by  fire  or  otherwise  lost,  affidavit  of  the  fact  should 
be    made,    and    secondary    evidence    of    possessory    title    will    be 
received,    which   may   consist   of    the   affidavit   of.  the   claimant, 
supported  by  those  of  any  other  parties  cognizant  of  the  facts 
relative    to    his    location,    occupancy,    possession,    improvements, 
etc.;    and    in   such   case   of   lost   records,   any   deeds,   certificates 
of   location    or   purchase,    or   other   evidence   which    may    be    in 
the  claimant's  possession  and  tend  to  establish  his  claim,  should 
be  filed. 

44.  Before    receiving   and    filing    an     application     for    mineral 
patent   local   officers  will  be   particular  to   see  that  it  includes 
no   land  which  is   embraced   in   a   prior  or   pending  application 
for   patent   or  entry,   or  for  any   lands  embraced  in  a   railroad 
selection,    or    for    which    publication    is    pending    or    has    been 
made   by    any    other   claimants,   and   if,    in   their   opinion,    after 
investigation,  it  should  appear  that  a  mineral  application  should 
not,    for    these    or    other    reasons,    be    accepted    and    filed,    they 
should   formally   reject   the   same,   giving   the   reasons   therefor, 


254  MINING  LAW 

and  allow  the  applicant  thirty  days  for  appeal  to  this  office 
under  the  Rules  of  Practice. 

Local  officers  will  give  prompt  and  appropriate  notice  to  the 
railroad  grantee  of  the  filing  of  every  application  for  mineral 
patent  which  embraces  any  portion  of  an  odd-numbered  section 
of  surveyed  lands  within  the  primary  limits  of  a  railroad  land 
grant,  and  of  every  such  application  embracing  any  portion  of 
unsurveyed  lands  within  such  limits  (except  as  to  any  such 
application  which  embraces  a  portion  or  portions  of  those  ascer 
tained  or  prospective  odd-numbered  sections  only,  within  the 
limits  of  the  grant  in  Montana  and  Idaho  to  the  Northern  Pacific 
Railroad  Company,  which  have  been  classified  as  mineral  under 
the  act  of  February  26,  1895,  without  protest  by  the  company 
within  the  time  limited  by  the  statute  or  the  mineral  classifica 
tion  whereof  has  been  approved). 

Should  the  railroad  grantee  file  protest  and  apply  for  a  hear 
ing  to  determine  the  character  of  the  land  involved  in  any 
such  application  for  mineral  patent,  proceedings  thereunder  will 
be  had  in  the  usual  manner. 

Any  application  for  mineral  patent,  however,  which  embraces 
lands  previously  listed  or  selected  by  a  railroad  company  will 
be  disposed  of  as  provided  by  the  first  section  of  this  para 
graph,  and  the  applicant  afforded  opportunity  to  protest  and 
apply  for  a  hearing  or  to  appeal. 

Notice  should  be  given  to  the  duly  authorized  representative 
of  the  railroad  grantee,  in  accordance  with  rule  17  of  Practice. 
When  the  claims  applied  for  are  upon  unsurveyed  land,  the 
burden  of  proving  that  they  are  situate  within  prospective  odd- 
numbered  sections  will  rest  upon  the  railroad. 

Evidence  of  service  of  notice  should  be  filed  with  the  record 
in  each  case. 

45.  Upon  the  receipt  of  these  papers,  if  no  reason  appears 
for  rejecting  the  application,  the  register  will,  at  the  expense 
of  the  claimant  (who  must  furnish  the  agreement  of  the  pub 
lisher  to  hold  applicant  for  patent  alone  responsible  for  charges 
of  publication),  publish  a  notice  of  such  application  for  the 
period  of  sixty  days  in  a  newspaper  published  nearest  to  the 
claim,  and  will  post  a  copy  of  such  notice  in  his  office  for  the 


LAND  OFFICE  REGULATIONS  255 

same  period.  When  the  notice  is  published  in  a  weekly  news 
paper,  nine  consecutive  insertions  are  necessary;  when  in  a 
daily  newspaper,  the  notice  must  appear  in  each  issue  for  sixty- 
one  consecutive  issues.  In  both  cases  the  first  day  of  issue  must 
be  excluded  in  estimating  the  period  of  sixty  days. 

46.  The  notices  so  published  and  posted  must  embrace  all  the 
data  given  in  the  notice  posted  upon  the  claim.     In  addition  to 
such  data  the  published  notice  must  further  indicate  the  locus 
of   the   claim   by   giving  the   connecting   line,   as   shown   by   the 
field  notes  and  plat,  between  a  corner  of  the  claim  and  a  United 
States  mineral  monument  or  a  corner  of  the  public  survey,  and 
thence  the  boundaries  of  the  claim  by  courses  and  distances. 

47.  The    register    shall    publish    the    notice    of    application   for 
patent  in  a  paper  of  established  character  and  general  circula 
tion,  to  be  by  him  designated  as  being  the  newspaper  published 
nearest  the  land. 

48.  The    claimant    at    the    time    of    filing    the    application    for 
patent,  or  at  any  time  within  the  sixty  days  of  publication,  is 
required  to  file  with  the  register  a  certificate  of  the  surveyor- 
general  that  not  less  than  five  hundred  dollars'  worth  of  labor 
has  been  expended  or  improvements  made,  by  the  applicant  or 
his   grantors,    upon    each   location   embraced   in   the   application, 
or  if  the  application  embraces  several  contiguous  locations  held 
in  common,   that   an  amount  equal  to  five  hundred  dollars  for 
each   location   has   been   so   expended   upon,  and  for  the  benefit 
of,  the  entire  group;   that  the  plat  filed  by  the  claimant  is  cor 
rect;    that  the  field  notes  of  the  survey,  as  filed,  furnish  such 
an  accurate  description  of  the  claim  as  will,  if  incorporated  in 
a   patent,   serve   to    fully   identify   the   premises,   and  that  such 
reference  is  made  therein  to  natural  objects  or  permanent  mon 
uments  as  will  perpetuate  and  fix  the  locus  thereof:    Provided, 
That    as    to    all    applications    for    patents    made    and    passed    to 
entry  before  July  1,  1898,  or  which  are  by  protests  or  adverse 
claims   prevented  from  being  passed  to  entry  before  that  time, 
where  the   application   embraces  several  locations  held   in   com 
mon,  proof  of  an  expenditure  of  five  hundred  dollars  upon  the 
group    will    be    sufficient,    and    an    expenditure    of    that    amount 


256  MINING  LAW 

need  not  be  shown  to  have  been  made  upon,  or  for  the  benefit 
of,  each  location  embraced  in  the  application. 

49.  The    surveyor-general    may    derive    his    information    upon 
which  to  base  his  certificate  as  to  the  value  of  labor  expended 
or  improvements  made  from   the  mineral   surveyor  who   makes 
the  actual  survey  and  examination  upon  the  premises,  and  such 
mineral    surveyor    should    specify    with    particularity    and    full 
detail    the    character    and    extent    of    such    improvements,    but 
further  or  other  evidence  may  be  required  in  any  case. 

50.  It  will  be  convenient  to  have  this  certificate  indorsed  by 
the    surveyor-general,    both    upon    the    plat    and    field    notes    of 
survey  filed  by  the  claimant  as  aforesaid. 

51.  After  the  sixty  days'  period  of  newspaper  publication  has 
expired,  the  claimant  will  furnish  from  the  office  of  publication 
a  sworn  statement  that  the  notice  was  published  for  the  stat 
utory  period,  giving  the  first  and  last  day  of  such  publication, 
and  his  own  affidavit  showing  that  the  plat  and  notice  aforesaid 
remained    conspicuously    posted    upon    the    claim    sought    to    be 
patented  during  said  sixty  days'  publication,  giving  the  dates. 

52.  Upon   the   filing   of   this   affidavit  the   register   will,   if   no 
adverse  claim  was  filed  in  his  office  during  the  period  of  pub 
lication,  and  no  other  objection  appears,  permit  the  claimant  to 
pay  for  the  land  to  which  he  is  entitled  at  the  rate  of  five  dol 
lars  for  each  acre  and  five  dollars  for  each  fractional  part  of 
an  acre,  except  as  otherwise  provided  by  law,  the  receiver  issu 
ing  the  usual  receipt  therefor.     The  claimant  will  also  make  a 
sworn  statement  of  all  charges  and  fees  paid  by  him  for  pub 
lication  and  surveys,  together  with  all  fees  and  money  paid  the 
register  and   receiver   of  the  land   office,   after  which   the  com 
plete    record    will    be    forwarded    to    the    Commissioner    of    the 
General  Land  Office  and  a  patent  issued  thereon  if  found  regular. 

53.  At  any  time  prior  to  the  issuance  of  patent  protest  may 
be  filed  against  the  patenting  of  the  claim  as  applied  for,  upon 
any   ground   tending  to   show  that  the  applicant   has   failed   to 
comply  with  the  law  in  any  matter  essential  to  a  valid  entry 
under  the  patent  proceedings.     Such   protest  can  not,  however, 
be   made   the   means    of   preserving   a    surface    conflict   lost   by 
failure  to  adverse  or  lost  by  the  judgment  of  the  court  in  an 


LAND  OFFICE  REGULATIONS  257 

adverse  suit.  One  holding  a  present  joint  interest  in  a  min 
eral  location  included  in  an  application  for  patent  who  is  ex 
cluded  from  the  application,  so  that  his  interest  would  not 
be  protected  by  the  issue  of  patent  thereon,  may  protest  against 
the  issuance  of  a  patent  as  applied  for,  setting  forth  in  such 
protest  the  nature  and  extent  of  his  interest  in  such  location, 
and  such  a  protestant  will  be  deemed  a  party  in  interest  en 
titled  to  appeal.  This  results  from  the  holding  that  a  co-owner 
excluded  from  an  application  for  patent  does  not  have  an  "ad 
verse"  claim  within  the  meaning  of  sections  2325  and  2326  of 
the  Revised  Statutes.  (See  Turner  v.  Sawyer,  150  U.  S.,  578- 
586.) 

54.  Any    party   applying   for   patent   as    trustee   must   disclose 
fully  the  nature  of  the   trust  and  the   name  of  the   cestui  que 
trust;  and  such  trustee,  as  well  as  the  beneficiaries,  must  fur 
nish   satisfactory   proof  of  citizenship;    and  the  names  of  bene 
ficiaries,   as   well   as    that    of   the   trustee,   must   be    inserted    in 
the  final  certificate  of  entry. 

55.  The   annual   expenditure  of  one   hundred   dollars  in   labor 
or  improvements   on  a   mining  claim,   required   oy   section  2324 
of    the    Revised    Statutes,    is    solely   a   matter   between    rival    or 
adverse    claimants    to    the    same    mineral    land,    and    goes    only 
to  the  right  of  possession,  the  determination  of  which  is  com 
mitted  exclusively  to  the  courts. 

56.  The  failure  of  an  applicant  for  patent  to  a  mining  claim 
to  prosecute  his  application   to  completion,  by  filing  the  neces 
sary    proofs   and   making   payment   for  the   land,   within   a   rea 
sonable  time   after  the   expiration   of  the   period  of  publication 
of  notice  of  the  application,  or  after  the  termination  of  adverse 
proceedings  in  the  courts,  constitutes  a  waiver  by  the  applicant 
of  all  rights  obtained  by  the  earlier  proceedings  upon  the  appli 
cation. 

57.  The  proceedings  necessary  to  the  completion  of  an  appli 
cation  for  patent  to  a  mining  claim,  against  which  an  adverse 
claim    or  protest   has   been   filed,   if   taken   by   the   applicant   at 
the   first   opportunity   afforded   therefor   under  the   law   and   de 
partmental  practice,  will  be  as  effective  as  if  taken  at  the  date 


258  MINING  LAW 

when,  but  for  the  adverse  claim  or  protest,  the  proceedings  on 
the  application  could  have  been  completed. 

PLACER   CLAIMS. 

58.  The   proceedings   to   obtain   patents   for   placer   claims,    in 
cluding  all  forms  of  mineral  deposits  excepting  veins  of  quartz 
or  other  rock  in  place,  are  similar  to  the  proceedings  prescribed 
for    obtaining    patents    for    vein    or    lode    claims;    but    where    a 
placer   claim    shall    be    upon    surveyed    lands,    and    conforms    to 
legal   subdivisions,   no   further  survey   or  plat  will   be  required. 
Where   placer    claims    can    not    be    conformed    to    legal    subdivi 
sions,  s\irvey  and  plat  shall  be  made  as  on  unsurveyed  lands. 

59.  The  proceedings   for  obtaining  patents   for  veins   or  lodes 
having   already    been    fully    given,   it   will   not    be   necessary    to 
repeat  them  here,  it  being  thought  that  careful  attention  thereto 
by    applicants    and    the    local    officers    will    enable    them    to    act 
understandingly  in  the  matter,  and  make  such  slight  modifica 
tions  in  the  notice,  or  otherwise,  as  may  be  necessary  in  view 
of  the  different  nature  of  the  two  classes  of  claims;    the  price 
of   the  placer  claims  being  fixed,   however,   at  two   dollars   and 
fifty  cents  per  acre  or  fractional  part  of  an  acre. 

60.  In    placer   applications,   in   addition   to   the   recitals   neces 
sary   in  and  to  both  vein  or  lode  and   placer  applications,   the 
placer   application   should   contain,   in  detail,   such  data  as  will 
support   the   claim   that   the   land   applied   for   is   placer   ground 
containing  valuable  mineral  deposits  not  in  vein  or  lode  forma 
tion   and   that  title   is  sought  not   to   control   water   courses   or 
to    obtain    valuable    timber    but    in    good    faith    because    of    the 
mineral  therein.     This  statement,  of  course,  must  depend  upon 
the   character   of   the   deposit   and  the   natural   features   of   the 
ground,    but   the    following   details    should    be    covered    as    fully 
as  possible:      If  the  claim  be  for  a  deposit  of  placer  gold,  there 
must  be  stated  the  yield  per  pan,  or  cubic  yard,  as  shown  by 
prospecting  and  development  work,  distance  to  bedrock,   forma 
tion  and  extent  of  the  deposit,  and  all  other  facts  upon  which 
he  bases  his   allegation  that  the  claim   is   valuable   for   its  de 
posits  of  placer  gold.     If  it  be  a  building  stone  or  other  deposit 
than  gold  claimed  under  the  placer  laws,  he  must  describe  fully 


LAND  OFFICE  REGULATIONS  259 

the  kind,  nature,  and  extent  of  the  deposit,  stating  the  reasons 
why  same  is  by  him  regarded  as  a  valuable  mineral  claim. 
He  will  also  be  required  to  describe  fully  the  natural  features 
of  the  claim;  streams,  if  any,  must  be  fully  described  as  to 
their  course,  amount  of  water  carried,  fall  within  the  claim; 
and  he  must  state  kind  and  amount  of  timber  and  other  vege 
tation  thereon  and  adaptability  to  mining  or  other  uses. 

If  the  claim  be  all  placer  ground,  that  fact  must  be  stated  in 
the  application  and  corroborated  by  accompanying  proofs;  if  of 
mixed  placers  and  lodes,  it  should  be  so  set  out,  with  a  descrip 
tion  of  all  known  lodes  situated  within  the  boundaries  of  the 
claim.  A  specific  declaration,  such  as  is  required  by  section 
2333,  Revised  Statutes,  must  be  furnished  as  to  each  lode  in 
tended  to  be  claimed.  All  other  known  lodes  are,  by  the  silence 
of  the  applicant  excluded  by  law  from  all  claim  by  him,  of 
whatsoever  nature,  possessory  or  otherwise. 

While  this  data  is  required  as  a  part  of  the  mineral  surveyor's 
report  under  paragraph  167,  in  case  of  placers  taken  by  special 
survey,  it  is  proper  that  the  application  for  patent  incorporate 
these  facts  under  the  oath  of  the  claimant. 

Inasmuch  as  in  case  of  claims  taken  by  legal  subdivisions,  no 
report  by  a  mineral  surveyor  is  required,  the  claimant,  in  his 
application  in  addition  to  vthe  data  above  required,  should  de 
scribe  in  detail  the  shafts,  cuts,  tunnels,  or  other  workings 
claimed  as  improvements,  giving  their  dimensions,  value,  and 
the  course  and  distance  thereof  to  the  nearest  corner  of  the 
public  surveys. 

As  prescribed  by  paragraph  25,  this  statement  as  to  the  de 
scription  and  value  of  the  improvements  must  be  corroborated 
by  the  affidavits  of  two  disinterested  witnesses. 

Applications  awaiting  entry,  whether  published  or  not,  must 
be  made  to  conform  to  these  regulations,  with  respect  to  proof 
as  to  the  character  of  the  land.  Entries  already  made  will  be 
suspended  for  such  additional  proofs  as  may  be  deemed  neces 
sary  in  each  case. 

Local  land  officers  are  instructed  that  if  the  proofs  submitted 
in  placer  applications  under  this  paragraph  are  not  satisfactory 
as  showing  the  land  as  a  whole  to  be  placer  in  character,  or 


260  MINING  LAW 

if  the  claims  impinge  upon  or  embrace  water  courses  or  bodies 
of  water,  and  thus  raise  a  doubt  as  to  the  bona  fides  of  the 
location  and  application,  or  the  character  and  extent  of  the 
deposit  claimed  thereunder,  to  call  for  further  evidence,  or  if 
deemed  necessary,  request  the  specific  attention  of  the  Chief 
of  Field  Service  thereto  in  connection  with  the  usual  notification 
to  him  under  the  circular  instructions  of  April  24,  1907,  and 
suspend  further  action  on  the  application  until  a  report  thereon 
is  received  from  the  field  officer. 

MILL  SITES. 

61.  Land   entered   as   a   mill   site   must   be   shown   to   be   non 
mineral.     Mill  sites  are  simply  auxiliary  to  the  working  of  min 
eral  claims,  and  as  section  2337,  which  provides  for  the  patent 
ing   of  mill    sites,   is   embraced   in    the   chapter   of   the   Revised 
Statutes  relating  to  mineral  lands,  they  are  therefore  included 
in   this  circular. 

62.  To  avail  themselves  of  this  provision  of  law,  parties  hold 
ing    the    possessory    right    to    a    vein    or    lode    claim,    and    to    a 
piece  of  nonmineral  land  not  contiguous  thereto  for  mining  or 
milling   purposes,   not  exceeding   the  quantity   allowed   for  such 
purpose  by  section   2337,   or  prior  laws,   under  which  the  land 
was  appropriated,  the  proprietors  of  such  vein  or  lode  may  file 
in  the  proper  land  office  their  application   for  a   patent,   undef 
oath,    in    manner    already    set    forth    herein,    which    application, 
together  with   the   plat  and   field   notes,   may   include,    embrace, 
and  describe,  in  addition  to  the  vein  or  lode  claim,  such  non 
contiguous   mill    site,   and   after   due   proceedings   as   to   notice, 
etc.,  a  patent  will  be  issued  conveying  the  same  as  one  claim. 
The  owner  of  a  patented  lode  may,  by  an  independent  applica 
tion,  secure  a  mill  site  if  good  faith  is  manifested  in  its  use 
or  occupation  in  connection  with  the  lode  and  no  adverse  claim 
exists. 

63.  Where  the  original  survey  includes  a  lode  claim  and  also 
a  mill  site  the  lode  claim  should  be  described  in  the  plat  and 
field  notes  as  "Sur.  No.  37,  A,"  and  the  mill  site  as  "Sur.  No. 
37,  B,"  or  whatever  may  be  its  appropriate  numerical  designa 
tion;    the  course  and   distance  from   a  corner  of  the  mill   site 


LAND  OFFICE  REGULATIONS  261 

to  a  corner  of  the  lode  claim  to  be  invariably  given  in  such 
plat  and  field  notes,  and  a  copy  of  the  plat  and  notice  of 
application  for  patent  must  be  conspicuously  posted  upon  the 
mill  site  as  well  as  upon  the  vein  or  lode  claim  for  the  statu 
tory  period  of  sixty  days.  In  making  the  entry  no  separate  re 
ceipt  or  certificate  need  be  issued  for  the  mill  site,  but  the  whole 
area  of  both  lode  and  mill  site  will  be  embraced  in  one  entry, 
the  price  being  five  dollars  for  each  acre  and  fractional  part  of 
an  acre  embraced  by  such  lode  and  mill-site  claim. 

64.  In   case   the   owner  of   a   quartz   mill   or   reduction    works 
is  not  the  owner  or  claimant  of  a  vein  or  lode  claim  the  law 
permits  him   to  make  application  therefor  in  the  same  manner 
as   prescribed   herein    for   mining   claims,   and   after   due    notice 
and  proceedings,  in  the  absence  of  a  valid  adverse  filing,  to  enter 
and  receive  a  patent  for  his  mill  site  at  said  price  per  acre. 

65.  In   every   case  there   must  be   satisfactory   proof   that   the 
land  claimed  as  a  mill  site  is  not  mineral  in  character,  which 
proof   may,    where   the    matter   is    unquestioned,    consist   of   the 
sworn  statement  of  two  or  more  persons  capable,  from  acquaint 
ance  with  the  land,  to  testify  understandingly. 

CITIZENSHIP. 

66.  The  proof  necessary  to  establish  the  citizenship  of  appli 
cants  for  mining  patents  must  be  made  in  the  following  manner: 
In  case  of  an   incorporated   company,   a  certified   copy   of  their 
character  or  certificate  of  incorporation  must  be  filed.     In  case 
of    an    association    of    persons    unincorporated,    the    affidavit    of 
their  duly  authorized  agent,  made  upon  his  knowledge  or  upon 
information    and    belief,    setting    forth    the    residence    of    each 
person  forming  such  association,  must  be  submitted.     This  affi 
davit  must   be   accompanied   by   a   power  of   attorney   from   the 
parties    forming   such    association,    authorizing   the   person    who 
makes  the  affidavit  of  citizenship  to  act  for  them  in  the  matter 
of  application  for  patent. 

67.  In  "case  of  an  individual  or  an  association  of  individuals 
who  do  not  appear  by  their  duly  authorized  agent,  the  affidavit 
of   each   applicant,   showing  whether   he   is  a  native   or   a  nat- 


262  MINING  LAW 

uralized  citizen,  when  and  where  born,  and  his   residence,   will 
be  required. 

68.  In  case  an  applicanixhas  declared  his  intention  to  become 
a  citizen   or  has  been  naturalized,   his  affidavit  must  show   the 
date,  place,  and  the  court  before  which  he  declared  his  intention, 
or  from  which  his  certificate  of  citizenship  issued,  and  present 
residence. 

69.  The  affidavit  of  the  claimant  as  to  his  citizenship  may  be 
taken  before  the  register  or  receiver,  or  any  other  officer  author 
ized   to    administer  oaths   within    the   land   districts;    or,   if  the 
claimant  is  residing  beyond  the  limits  of  the  district,  the  affi 
davit  may  be  taken  before  the  clerk  of  any  court  of  record  or 
before  any  notary  public  of  any  State  or  Territory. 

70.  If  citizenship   is  established  by  the  testimony  of  disinter 
ested  persons,  such  testimony  may  be  taken  at  any  place  before 
any    person   authorized   to   administer   oaths,    and   whose   official 
character  is  duly  verified. 

71.  No  entry   will   be  allowed   until  the  register  has   satisfied 
himself,  by   careful   examination,  that   proper  proofs  have   been 
filed   upon   the   points   indicated   in   the  law   and  official   regula 
tions.    Transfers  made  subsequent  to  the  filing  of  the  application 
for  patent  will  not  be  considered,  but  entry  will  be  allowed  and 
patent  issued  in  all  cases  in  the  name  of  the  applicant  for  patent, 
the  title  conveyed  by  the  patent,  of  course,  in  each  instance  in 
uring  to  the  transferee  of  such  applicant  where  a  transfer  has 
been  made  pending  the  application   for  patent. 

72.  The  mineral  entries  will  be  given  the  current  serial  num 
bers  according  to  the  provisions  of  the  circular  of  June  10,  1908, 
whether  the  same  are  of  lode  or  of  placer  claims  or  of  mill  sites. 

73.  In  sending  up  the  papers  in  a  case  the  register  must  not 
omit   certifying  to   the   fact   that  the   notice   was   posted   in   his 
office  for  the  full  period  of  sixty  days,  such  certificate  to  state 
distinctly  when  such  posting  was  done  and  how  long  continued. 
The    schedule    of    papers,    form    4 — 252f,    should    accompany    the 
returns  with  all  mineral  applications  and  entries  allowed. 

POSSESSORY  RIGHT. 

74.  The    provisions    of    section    2332,    Revised    Statutes,    will 


LAND  OFFICE  REGULATIONS  263 

greatly  lessen  the  burden  of  proof,  more  especially  in  the  case 
of  old  claims  located  many  years  since,  the  records  of  which, 
in  many  cases,  have  been  destroyed  by  fire,  or  lost  in  other 
ways  during  the  lapse  of  time,  but  concerning  the  possessory 
right  to  which  all  controversy  or  litigation  has  long  been 
settled. 

75.  When  an  applicant  desires  to  make  his  proof  of  possessory 
right  in  accordance  with  this  provision  of  law,  he  will  not  be 
required  to  produce  evidence  of  location,  copies  of  conveyances, 
or  abstracts  of  title,  as  in  other  cases,  but  will  be  required  to 
furnish    a    duly    certified    copy   of   the    statute    of    limitation    of 
mining    claims    for    the    State    or    Territory,    together   with    his 
sworn   statement  giving  a  clear  and   succinct   narration   of   the 
facts  as  to  the  origin  of  his  title,  and  likewise  as  to  the  con 
tinuation   of   his    possession    of   the   mining   ground   covered   by 
his  application;   the  area  thereof;   the  nature  and  extent  of  the 
mining   that   has   been   done    thereon;    whether   there   has   been 
any   opposition   to   his    possession,   or  litigation   with   regard   to 
his  claim,  and  if  so,  when  the  same  ceased;  whether  such  cessa 
tion  was  caused  by  compromise  or  by  judicial  decree,  and  any 
additional  facts  within  the  claimant's  knowledge  having  a  direct 
bearing  upon  his  possession  and  bona  fides  which  he  may  desire 
to  submit  in  support  of  his  claim. 

76.  There    should    likewise    be    filed    a    certificate,    under    seal 
of   the    court    having   jurisdiction    of   mining    cases    within    the 
judicial  district  embracing  the  claim,  that  no  suit  or  action  of 
any  character  whatever  involving  the  right  of  possession  to  any 
portion  of  the  claim  applied  for  is  pending,  and  that  there  has 
been  no  litigation  before  said  court  affecting  the  title  to   said 
claim  or  any  part  thereof  for  a  period  equal  to  the  time  fixed 
by  the  statute  of  limitations  for  mining  claims  in  the  State  or 
Territory  as   aforesaid   other  than  that  which   has   been   finally 
decided  in  favor  of  the  claimant. 

77.  The  claimant  should  support  his  narrative  of  facts  rela 
tive    to    his    possession,    occupancy,    and    improvements    by    cor 
roborative  testimony  of  any  disinterested  person  or  persons  of 
credibility  who  may  be  cognizant  of  the  facts  in  the  case  and 
are  capable  of  testifying  understandingly  in  the  premises. 


264  MINING  LAW 

ADVERSE  CLAIMS. 

78.  An  adverse  claim  must  be  filed  with  the  register  and  re 
ceiver  of  the  land  office  where  the  application  for  patent  is  filed 
or  with  the  register  and  receiver  of  the   district  in  which   the 
land  is  situated  at  the  time  of  filing  the  adverse  claim.     It  must 
be  on  the  oath  of  the  adverse  claimant,  or  it  may   be   verified 
by  the  oath  of  any  duly  authorized  agent  or  attorney  in  fact  of 
the  adverse  claimant  cognizant  of  the  facts  stated. 

79.  Where   an  agent  or  attorney   in   fact   verifies   the   adverse 
claim,  he  must  distinctly  swear  that  he  is  such  agent  or  attorney, 
and  accompany  his  affidavit  by  proof  thereof. 

80.  The    agent    or    attorney    in    fact   must    make    the    affidavit 
whe*re  the  claim  is  situated. 

81.  The  adverse  claim  so  filed  must  fully  set  forth  the  nature 
and  extent  of  the  interference  or  conflict;    whether  the  adverse 
party  claims  as  a  purchaser  for  valuable  consideration  or  as  a 
locator.     If  the  former,  a  certified  copy  of  the  original  location, 
the    original    conveyance,    a    duly    certified    copy    thereof,    or    an 
abstract  of  title   from   the   office  of   the   proper   recorder  should 
be  furnished,  or  if  the  transaction  was  a  merely  verbal  one  he 
will  narrate  the  circumstances  attending  the  purchase,  the  date 
thereof,  and  the  amount  paid,  which  facts  should  be  supported 
by  the  affidavit  of  one  or  more  witnesses,   if  any  were  present 
at  the  time,  and  if  he  claims  as  a  locator  he  must  file  a  duly 
certified   copy  of  the  location   from  the  office  of  the  proper   re 
corder. 

82.  In  order  that  the  "boundaries"  and  "extent"  of  the  claim 
may  be  shown,  it  will  be  incumbent  upon  the  adverse  claimant 
to  file  a  plat  showing  his  entire  claim,  its  relative  situation  or 
position  with  the  one  against  which  he  claims,  and  the  extent 
of  the  conflict:    Provided,   however,   That  if  the  application   for 
patent    describes    the    claim    by    legal    subdivisions,    the    adverse 
claimant,  if  also  claiming  by  legal  subdivisions,  may  describe  his 
adverse   claim   in   the   same  manner   without   further   survey   or 
plat.     If  the  claim  is  not  described  by  legal  subdivisions,  it  will 
generally  be  more  satisfactory  if  the  plat  thereof  is  made  from 


LAND  OFFICE  REGULATIONS  265 

an    actual    survey    by   a   mineral    surveyor,    and    its    correctness 
officially  certified  by  him. 

83.  Upon  the  foregoing  being  filed  within  the  sixty  days'  period 
of  publication,  the  register,  or  in  his  absence  the  receiver,  will 
immediately  give  notice  in  writing  to  the  parties  that  such  ad 
verse  claim  has  been  filed,  informing  them  that  the  party  who 
filed  the  adverse  claim  will  be  required  within  thirty  days  from 
the  date  of  such  filing  to  commence  proceedings  in  a  court  of 
competent    jurisdiction    to    determine    the    question    of    right    of 
possession,  and  to  prosecute  the  same  with  reasonable  diligence 
to  final  judgment,  and  that,  should  such  adverse  claimant  fail 
to  do  so,  his  adverse  claim  will  be  considered  waived  and  the 
application  for  patent  be  allowed  to  proceed  upon  its  merits. 

84.  When  an  adverse  claim  is  filed  as  aforesaid,  the  register 
or  receiver  will  indorse  upon  the  same  the  precise  date  of  filing, 
and  preserve  a  record  of  the  date  of  notifications  issued  thereon; 
and  thereafter  all  proceedings  on  the  application  for  patent  will 
be  stayed  with  the  exception  of  the  completion  of  the  publica 
tion  and  posting  of  notices  and  plat  and  the  filing  of  the  neces 
sary  proof  thereof,  until  the  controversy  shall  have  been  finally 
adjudicated  in  court  or  the  adverse  claim  waived  or  withdrawn. 

85.  Where   an   adverse  claim  has  been  filed   and  suit  thereon 
commenced  within  the  statutory  period  and  final  judgment  ren 
dered  determining  the  right  of  possession,  it  will  not  be  sufficient 
to  file  with  the  register  a  certificate  of  the  clerk  of  the  court 
setting  forth  the  facts  as  to  such  judgment,  but  the  successful 
party  must,  before  he  is  allowed  to  make  entry,  file  a  certified 
copy  of  the  judgment  roll,  together  with  the  other  evidence  re 
quired  by  section  2326,  Revised  Statutes. 

86.  Where  such  suit  has  been   dismissed,   a  certificate  of   the 
clerk  of  the  court  to  that  effect  or  a  certified  copy  of  the  order 
of  dismissal  will  be  sufficient. 

87.  After  an  adverse  claim  has  been  filed  and  suit  commenced, 
a  relinquishment  or  other  evidence  of  abandonment  of  the  ad 
verse  claim  will  not  be  accepted,  but  the  case  must  be  terminated 
and  proof  thereof  furnished  as  required  by  the  last  two  para 
graphs. 

88.  Where  an  adverse  claim  has  been  filed,  but  no  suit  com- 


266  MINING  LAW 

menced  against  the  applicant  for  patent  within  the  statutory 
period,  a  certificate  to  that  effect  by  the  clerk  of  the  State  court 
having  jurisdiction  in  the  case,  and  also  by  the  clerk  of  the 
circuit  court  of  the  United  States  for  the  district  in  which  the 
claim  is  situated,  will  be  required. 

APPOINTMENT  OF   SURVEYORS  FOR  SURVEY  OF 
MINING  CLAIMS  AND  CHARGES. 

89.  Section   2334   provides   for  the  appointment   of   surveys   to 
survey  mining  claims,  and  authorizes  the  Commissioner  of  the 
General   Land   Office   to    establish   the   rates   to   be   charged   for 
surveys  and   for  newspaper  publications.     Under  this  authority 
of  law  the  following  rates  have  been  established  as  the  maxi 
mum  charges  for  newspaper  publications  in  mining  cases: 

(1)  Where  a  daily  newspaper  is  designated  the  charge  shall 
not  exceed   seven   dollars   for  each  ten   lines  of  space  occupied, 
and  where  a  weekly    ^ewspaper  is  designated  as  the  medium  of 
publication  five  dollars  for  the  same  space  will  be  allowed.     Such 
charge  shall  be  accepted  as  full  payment  for  publication  in  each 
issue  of  the  newspaper  for  the  entire  period  required  by  law. 

It  is  expected  that  these  notices  shall  not  be  so  abbreviated  as 
to  curtail  the  description  essential  to  a  perfect  notice,  and  the 
said  rates  established  upon  the  understanding  that  they  are  to 
be  in  the  usual  body  type  used  for  advertisements. 

(2)  For   the   publication   of  citations   in   contests   or  hearings 
involving   the   character  of   lands   the  charges   shall   not   exceed 
eight  dollars  for  five  publications  in  weekly  newspapers  or  ten 
dollars  for  publications  in  daily  newspapers  for  thirty  days. 

90.  The  surveyors-general  of  the  several  districts  will,  in  pur 
suance  of  said  law,  appoint  in  each  land  district  as  many  com 
petent  surveyors  for  the  survey  of  mining  claims  as  may  seek 
such    appointment,    it    being   distinctly    understood    that    all    ex 
penses    of   these   notices    and    surveys    are   to   be   borne   by    the 
mining   claimant   and    not   by   the    United    States.      The    statute 
provides  that  the  claimant  shall  also  be  at  liberty  to  employ  any 
United  States  mineral  surveyor  to  make  the  survey.     Each  sur 
veyor  appointed  to  survey  mining  claims  before  entering  upon 
the    duties    of    his    office    or    appointment   shall    be    required    to 


LAND  OFFICE  REGULATIONS  267 

enter  into  a  bond  of  not  less  than  $5000  for  the  faithful   per 
formance  of  his  duties. 

91.  With  regard  to  the  platting  of  the  claim  and  other  office 
work   in  the  surveyor-general's  office,  that  officer  will  make  an 
estimate   of   the   cost    thereof,   which   amount   the  claimant   will 
deposit  with  any  assistant  United  States  treasurer  or  designated 
depository  in  favor  of  the  United  States  Treasurer,  to  be  paid 
to  the  credit  of  the  fund  created  by  "individual  depositors  for 
surveys  of  the  public  lands,"  and  file  with  the  surveyor-general 
duplicate  certificates  of  such  deposit  in  the  usual  manner. 

92.  The  surveyor-general  will  endeavor  to  appoint  surveyors  to 
survey  mining  claims  so   that  one  or  more  may   be   located   in 
each  mining  district  for  the  greater  convenience  of  miners. 

93.  The  usual  oaths  will  be   required  of   these  surveyors  and 
their  assistants   as   to   the  correctness   of   each   survey   executed 
by  them. 

The  duty  of  the  surveyor  ceases  when  he  has  executed  the 
survey  and  returned  the  field  notes  and  preliminary  plat  thereof 
with  his  report  to  the  surveyor-general.  He  will  not  be  allowed 
to  prepare  for  the  mining  claimant  the  papers  in  support  of  an 
application  for  patent,  or  otherwise  perform  the  duties  of  an 
attorney  before  the  land  office  in  connection  with  a  mining 
claim. 

The  surveyors-general  and  local  land  officers  are  expected  to 
report  any  infringement  of  this  regulation  to  this  office. 

94.  Should    it    appear    that    excessive    or    exorbitant    charges 
have  been  made  by  any  surveyor  or  any  publisher,  prompt  action 
will  be  taken  with  the  view  of  correcting  the  abuse. 

FEES  OF  REGISTERS  AND  RECEIVERS. 

95.  The  fees  payable  to  the  register  and  receiver  for  filing  and 
acting  upon   applications   for,  mineral-land  patents  are  five   dol 
lars  to  each   officer,   to  be  paid  by  the  applicant   for  patent  at 
the  time  of  filing,  and  the  like  sum  of  five  dollars  is  payable 
to  each  officer  by  an  adverse  claimant  at  the  time  of  filing  his 
adverse  claim.      (Sec.  2238,  R.  S.,  par.  9.) 

[Paragraphs  96,  97,  and  98  are  superseded  by  the  general  cir 
cular  instructions  of  June  10,  1908.1 


268  MINING  LAW 

HEARINGS  TO  DETERMINE  CHARACTER  OF 
LANDS. 

99.  The  Rules  of  Practice   in   cases  before   the   United   States 
district  land  offices,  the  General  Land  Office,  and  the  Department 
of  the  Interior  will,   so   far  as  practicable,  govern   in  all  cases 
and  proceedings  arising  in  contests  and  hearings  to   determine 
the   character   of   lands. 

100.  Public  land  returned  by  the  surveyor-general  as  mineral 
shall    be    withheld    from    entry    as    agricultural    land    until    the 
presumption  arising   from  such  a   return  shall  be  overcome  by 
testimony  taken  in  the  manner  hereinafter  described. 

101.  Hearings  to  determine  the  character  of.  lands: 

(1)  Lands  returned  as  mineral  by  the  surveyor-general. 
When    such    lands    are    sought    to    be   entered    as    agricultural 

under  laws  which  require  the  submission  of  final  proof  after 
due  notice  by  publication  and  posting,  the  filing  of  the  proper 
nonmineral  affidavit  in  the  absence  of  allegations  that  the  land 
is  mineral  will  be  deemed  sufficient  as  a  preliminary  require 
ment.  A  satisfactory  showing  as  to  character  of  land  must 
be  made  when  final  proof  is  submitted. 

In  case  of  application  to  enter,  locate,  or  select  such  lands 
as  agricultural,  under  laws  in  which  the  submission  of  final 
proof  after  due  publication  and  posting  is  not  required,  notice 
thereof  must  first  be  given  by  publication  for  sixty  days  and 
posting  in  the  local  office  during  the  same  period,  and  affirmative 
proof  as  to  the  character  of  the  land  submitted.  In  the  absence 
of  allegations  that  the  land  is  mineral,  and  upon  compliance 
with  this  requirement,  the  entry,  location,  or  selection  will  be 
allowed,  if  otherwise  regular. 

(2)  Lands  returned  as  agricultural  and  alleged  to  be  mineral 
in  character. 

Where  as  against  the  claimed  right  to  enter  such  lands  as 
agricultural  it  is  alleged  that  the  same  are  mineral,  or  are 
applied  for  as  mineral  lands,  the  proceedings  in  this  class  of 
cases  will  be  in  the  nature  of  a  contest,  and  the  practice  will 
be  governed  by  the  rules  in  force  in  contest  cases. 

[Paragraphs   102   to   104,   inclusive,   are   superseded   by   appro- 


LAND  OFFICE  REGULATIONS  269 

priate    instructions    relative    to    nonmineral    proofs    in    railroad, 
State,  and  forest  lieu  selections  contained  in  separate  circulars.] 

105.  At  hearings  to  determine  the  character  of  lands  the  claim 
ants   and   witnesses   will    be    thoroughly   examined   with    regard 
to  the  character  of  the  land;   whether  the  same  has  been  thor 
oughly  prospected;   whether  or  not  there  exists  within  the  tract 
or  tracts  claimed  any  lode  or  vein  of  quartz  or  other  rock  in 
place    bearing    gold,    silver,    cinnabar,    lead,    tin,    or    copper,    or 
other   valuable    deposit    which    has    ever   been   claimed,    located, 
recorded,  or  worked;   whether  such  work  is  entirely  abandoned, 
or   whether   occasionally    resumed;    if  such   lode   does    exist,   by 
whom    claimed,    under   what    designation,    and    in    which    subdi 
vision   of  the  land   it  lies;    whether  any  placer  mine  or  mines 
exist    upon    the    land;    if    so,    what    is    the    character    thereof — 
Whether    of    the    shallow-surface    description,    or    of    the    deep 
cement,   blue   lead,   or   gravel    deposits;    to   what   extent   mining 
is  carried  on  when  water  can  be  obtained,  and  what  the  facilities 
are  for  obtaining  water  for  mining   purposes;    upon   what  par 
ticular  ten-acre  subdivisions  mining  has  been  done,  and  at  what 
time  the  land  was  abandoned  for  mining  purposes,  if  abandoned 
at  all.     In  every  case,  where  practicable,  an  adequate  quantity 
or    number    of    representative    samples    of    the    alleged    mineral- 
bearing  matter  or  material  should  be  offered  in  evidence,  with 
proper   identification,   to   be   considered   in   connection   with   the 
record,  with  which  they  will  be  transmitted  upon  each  appeal 
that  may    be   taken.      Testimony   may   be    submitted    as    to    the 
geological   formation   and  development   of  mineral  on  adjoining 
or  adjacent  lands  and  their  relevancy. 

106.  The  testimony  should  also  show  the  agricultural  capaci 
ties    of   the   land,   what   kind   of   crops   are   raised   thereon,   and 
the  value  thereof;    the  number  of  acres  actually  cultivated  for 
crops  of  cereals  or  vegetables,  and  within  which  particular  ten- 
acre    subdivision    such    crops    are    raised;    also    which    of    these 
subdivisions    embrace    the    improvements,    giving    in    detail    the 
extent    and    value    of    the    improvements,    such    as    house,    barn, 
vineyard,    orchard,   fencing,    etc.,   and   mining   improvements. 

107.  The   testimony   should    be    as    full   and   complete    as    pos 
sible;    and   in   addition    to    the   leading   points    indicated    above. 


270  MINING  LAW 

where  an  attempt  is  made  to  prove  the  mineral  character  of 
lands  which  have  been  entered  under  the  agricultural  laws,  it 
should  show  at  what  date,  if  at  all,  valuable  deposits  of  min 
erals  were  first  known  to  exist  on  the  lands. 

108.  When    the    case    comes    before    this    office,    such    decision 
will  be  made  as  the  law  and  the  facts  justify.     In  cases  where 
a  survey  is  necessary  to   set  apart  the  mineral   from  the  agri 
cultural    land,    the    proper    party,    at    his   own    expense,    will    be 
required   to   have   the   work   done   by    a   reliable   and   competent 
surveyor  to  be  designated  by  the  surveyor-general.     Application 
therefor  must  be  made  to  the  register  and  receiver,  accompanied 
by  description  of  the  land  to  be  segregated  and  the  evidence  of 
service    upon    the   opposite   party    of   notice   of   his   intention    to 
have    such    segregation    made.      The    register    and  'receiver   will 
forward  the  same  to  this  office,  when  the  necessary  instructions 
for  the  survey  will  be  given.     The  survey  in  such  case,  where 
the  claims   to  be   segregated  are  vein  or  lode  claims,  must  be 
executed   in   such  manner  as  will  conform   to   the   requirements 
in  section   2320,  Revised   Statutes,  as  to   length  and  width  and 
parallel  end  lines. 

109.  Such   survey   when   executed  must  be   properly   sworn    to 
by   the   surveyor,   either   before   a   notary    public,   United    States 
commissioner,  officer  of  a  court  of  record,  or  before  the  register 
or  receiver,  the  deponent's  character  and  credibility  to  be  prop 
erly  certified  to  by  the  officer  administering  the  oath. 

110.  Upon  the  filing  of  the  plat  and  field  notes  of  such  survey 
with  the  register  and  receiver,  duly  sworn  to  as  aforesaid,  they 
will  transmit  the  same  to  the  surveyor-general  for  his  verifica 
tion  and  approval,  who,  if  he  finds  the  work  correctly  performed, 
will   furnish   authenticated   copies   of  such   plat   and   description 
both  to  the  proper  local  land  office  and  to  this  office,  made  upon 
the    usual    drawing-paper    township    blank. 

The  copy  of  plat  furnished  the  local  office  and  this  office  must 
be  a  diagram  verified  by  the  surveyor-general,  showing  the  claim 
or  claims  segregated,  and  designating  the  separate  fractional 
agricultural  tracts  in  each  40-acre  legal  subdivision  by  the  proper 
lot  number,  beginning  with  No.  1  in  each  section,  and  giving 


LAND  OFFICE  REGULATIONS  271 

the  area  in  each  lot,  the  same  as  provided  in  paragraph  37  in 
the   survey   of   mining   claims  on   surveyed  lands. 

111.  The   fact   that   a   certain    tract   of   land    is   decided    upon 
testimony  to  be  mineral  in  character  is  by  no  means  equivalent 
to   an    award    of   the   land   to   a  miner.      In   order   to   secure   a 
patent   for  such   land,    he   must   proceed    as    in    other   cases,    in 
accordance    with    the    foregoing    regulations. 

Blank  forms  for  proofs  in  mineral  cases  are  not  furnished  by 
the  General  Land  Office. 

DISTRICT  OF  ALASKA. 

112.  Section  13,  act  of  May  14,  1898,  according  to  native-born 
citizens  of  Canada  "the  same  mining  rights  and  privileges"  in 
the  district  of  Alaska  as  .are  accorded  to  citizens  of  the  United 
States    in    British    Columbia    and    the    Northwest    Territory    by 
the  laws  of  the  Dominion  of  Canada,  is  not  now  and  never  has 
been    operative,    for    the    reason    that    the    only    mining    rights 
and  privileges  granted  to  any  person  by  the  laws  of  the  Domin 
ion  of  Canada  are  those  of  leasing  mineral  lands  upon  the  pay 
ment  of  a  stated   royalty,  and  the  mining  laws  of  the  United 
States  make  no  provision   for  such  leases. 

113.  For  the  sections  of  the  act  of  June  6,  1900,  making  further 
provision  for  a  civil  government  for  Alaska,  which  provide  for 
the    establishment    of   recording  districts    and   the   recording   of 
mining  locations;    for  the  making  of   rules  and  regulations  by 
the  miners  and  for  the  legalization  of  mining  records;   for  the 
extension  of  the  mining  laws  to  the  district  of  Alaska,  and  for 
the  exploration  and  mining  of  tide  lands  and  lands  below  low 
tide;  and  relating  to  the  rights  of  Indians  and  persons  conduct 
ing  schools  and  missions,  see  pp.  212-213  of  this  circular. 

MINERAL  LANDS  WITHIN  NATIONAL  FORESTS. 

114.  The  act  of  June  4,  1897,  provides  that  "any  mineral  lands 
in   any   forest   reservation   which   have   been   or  which   may  be 
shown  to  be  such,  and  subject  to  entry  under  the  existing  min 
ing   laws   of   the   United   States   and   the  rules   and   regulations 
applying  thereto,  shall  continue  to  be  subject  to  such  location 
and  entry,"  notwithstanding  the  reservation.     This  makes  min- 


272  MINING  LAW 

eral   lands  in  the   forest  reserves  subject  to  location  and  entry 
under  the  general  mining  laws  in  the  usual  manner. 

The  act  also  provides  that  "The  Secretary  of  the  Interior  may 
permit,  under  regulations  to  be  prescribed  by  him,  the  use  of 
timber  and  stone  found  upon  such  reservations,  free  of  charge, 
by  bona  fide  settlers,  miners,  residents,  and  prospectors  for  min 
erals,  for  firewood,  fencing,  buildings,  mining,  prospecting,  and 
other  domestic  purposes,  as  may  be  needed  by  such  persons  for 
such  purposes;  such  timber  to  be  used  within  the  State  or  Ter 
ritory,  respectively,  where  such  reservations  may  be  located." 

TRANSFER   OP    NATIONAL   FORESTS. 

Act  of  February  1,  1905   (33  Stat,  628). 

The  Secretary  of  the  Department  of  Agriculture  shall,  from 
and  after  the  passage  of  this  act,  execute  or  cause  to  be  executed 
all  laws  affecting  public  lands  heretofore  or  hereafter  reserved 
under  the  provisions  of  section  twenty-four  of  the  act  entitled 
"An  act  to  repeal  the  timber-culture  laws,  and  for  other  pur 
poses,"  approved  March  3,  1891,  and  acts  supplemental  to  and 
amendatory  thereof,  after  such  lands  have  been  so  reserved, 
excepting  such  laws  as  affect  the  surveying,  prospecting,  locat 
ing,  appropriating,  entering,  relinquishing,  reconveying,  certify 
ing,  or  patenting  of  any  of  such  lands. 

(For  further  information  see  Use  Book — Forest  Service.) 

SURVEYS  OF  MINING  CLAIMS. 

GENERAL   PROVISIONS. 

115.  Under  section  2334,  Revised  Statutes,  the  U.  S.  surveyor- 
general   "may   appoint  in   each  land   district  containing  mineral 
land  as  many  competent  surveyors  as  shall  apply  for  appoint 
ment  to  survey  mining  claims." 

116.  Persons   desiring   such  appointment   should   therefore   file 
their    applications    with    the    surveyor-general    for    the    district 
wherein  appointment  is  asked,  who  will  furnish  all  information 
necessary. 

117.  All  appointments  of  mineral  surveyors  must  be  submitted 
to   the   Commissioner  of   the   General   Land   Office   for   approval, 


LAND  OFFICE  REGULATIONS  273 

118.  The   surveyors-general   have  authority   to   suspend  or  re 
voke  the  commissions  of  mineral  surveyors   for  cause.     Before 
final    action,    however,   the   matter   should   be   submitted   to    the 
Commissioner  of  the  General  Land  Office  for  approval.     . 

119.  Such  surveyors  will  be  allowed  the  right  of  appeal  from 
the  action  of  the  surveyor-general  in  ,the  usual  manner.     Such 
appeal   should  be   filed   with   the   surveyor-general,   who   will   at 
once  transmit  the  same,  with  a  full  report,  to  the  General  Land 
Office. 

120.  Neither    the    surveyor-general    nor    the    Commissioner    of 
the   General    Land   Office   has   jurisdiction   to    settle    differences, 
relative  to  the  payment  of  charges  for  field  work,  between  min 
eral  surveyors  and  claimants.     These  are  matters  of  private  con 
tract  and  must  be  enforced  in  the  ordinary  manner,  i.  e.,  in  the 
local    courts.      The    Department   has,    however,   authority    to   in 
vestigate   charges   affecting  the   official   actions   of   mineral    sur 
veyors,   and  will,   on  sufficient  cause  shown,   suspend  or  revoke 
their  appointment. 

121.  The  surveyors-general  should  appoint  as  many  competent 
mineral    surveyors    as    apply    for    appointment,    in    order    that 
claimants  may  have  a   choice  of  surveyors,   and  be  enabled  to 
have  their  work  done  on  the  most  advantageous  terms. 

122.  The  schedule  of  charges  for  office  work  should  be  as  low 
as  is  possible.     No  additional  charges  should  be  made  for  orders 
for    amended    surveys,    unless   the   necessity    therefor    is    clearly 
the  fault  of  the  claimant,  or  considerable  additional  office  work 
results   therefrom. 

123.  [Omitted.] 

124.  Mineral  surveyors  will  address  all  official  communications 
to   the   surveyor-general.     They   will,   when   a    mining  claim    is 
the  subject  of  correspondence,  give  the  name  and  survey  num 
ber.     In  replying  to  letters  they  will  give  the  subject-matter  and 
date    of    the    letter.      They    will    prompty    notify    the    surveyor- 
general  of  any  change  in  post-office  address. 

125.  Mineral  surveyors  should  keep  a  complete  record  of  each 
survey  made  by  them  and  the  facts  coming  to  their  knowledge 
at  the  time,  as  well  as  copies  of  all  their  field  notes,  reports, 
and   official   correspondence,    in   order   that   such    evidence   may 


274  MINING  LAW 

be  readily  produced  when  called  for  at  any  future  time.  Field 
notes  and  other  reports  must  be  written  in  a  clear  and  legible 
hand  or  typewritten,  in  noncopying  ink,  and  upon  the  proper 
blanks  furnished  gratuitously  by  the  surveyor-general's  office 
upon  application  therefor.  No  interlineations  or  erasures  will 
be  allowed. 

126.  No  return   by   a  mineral  surveyor  will  be   recognized   as 
official  unless  it  is  over  his  signature  as  a  United  States  min 
eral  surveyor,  and  made  in  pursuance  of  a  special  order  from 
the  surveyor-general's  office.     After  he  has  received  an  order  for 
survey  he   is   required   to   make   the   survey   and   return   correct 
field  notes  thereof  to  the  surveyor-general's  office  without  delay. 

127.  The  claimant  is  required,  in  all  cases,  to  make  satisfac 
tory  arrangements  with   the  surveyor  for  the   payment   for  his 
services   and  those  of  his  assistants   in  making  the   survey,   as 
the  United  States  will  not  be  held  responsible  for  the  same. 

128.  A    mineral    surveyor    is    precluded     from     acting,     either 
directly  or  indirectly,  as  attorney  in  mineral  claims.     His  duty 
in  any  particular  case  ceases  when  he  has  executed  the  survey 
and    returned    the    field    notes    and    preliminary    plat,    with    his 
report,  to  the  surveyor-general.     He  will  not  be  allowed  to  pre 
pare  for  the  mining  claimant  the  papers  in  support  of  his  appli 
cation  for  patent,  or  otherwise  perform  the  duties  of  an  attorney 
before  the  land  office  in  connection  with   a  mining  claim.     He 
is  not  permitted  to  combine  the  duties  of  surveyor  and  notary 
public  in  the  same  case  by  administering  oaths  to  the  parties 
in    interest.      It   is    preferable    that   both    preliminary    and   final 
oaths  of  assistants  should  be  taken  before  some  officer  duly  au 
thorized  to  administer  oaths,  other  than  the  mineral  surveyor. 
In  cases,  however,  where  great  delay,  expense,  or  inconvenience 
would  result  from  a  strict  compliance  with  this  rule,  the  min 
eral   surveyor  is   authorized   to   administer   the   necessary   oaths 
to  his  assistants,  but  in  each  case  where  this  is  done,  he  will 
submit  to  the  proper  surveyor-general  a  full  written  report  of 
the  circumstances   which   required  his   stated   action;    otherwise 
he  must  have  absolutely  nothing  to  do  with  the  case,  except  in 
his  official  capacity  as  surveyor.     He. will  not  employ  chainmen 
interested  therein  in  any  manner. 


LAND  OFFICE  REGULATIONS  275 

METHODS    OF    SURVEY. 

129.  The  survey   made  and   returned   must,   in   every   case,   be 
an  actual  survey  on  the  ground  in  full  detail,  made  by  the  min 
eral    surveyor   in    person    after    the    receipt    of    the    order,    and 
without    reference    to   any    knowledge    he   may    have-  previously 
acquired  by  reason  of  having  made  the  location  survey  or  other 
wise,    and    must    show    the    actual    facts    existing    at    the   time. 
This  precludes  him  from  calculating  the  connections  to  corners 
of  the  public  survey  and  location  monuments,  or  any  other  lines 
of  his  survey  through  prior  surveys  made  by  others  and  substi 
tuting  the  same  for  connections  or  lines  of  the  survey  returned 
by  him.     The  term  survey  in   this  paragraph  applies  not  only 
to  the  usual  field  work,  but  also  to  the  examinations  required 
for    the    preparation    of    affidavits    of    five    hundred    dollars    ex 
penditure,    descriptive    reports   on    placer   claims,   and   all    other 
reports. 

130.  The  survey  of  a  mining  claim  may  consist  of  several  con 
tiguous    locations,    but    such    survey    must,    in    conformity    with 
statutory    requirements,    distinguish    the    several    locations,    and 
exhibit  the  boundaries  of  each.     The  survey  will  be  given  but 
one  number. 

131.  The  survey  must  be  made  in  strict  conformity  with,  or 
be  embraced  within,  the  lines  of  the  location   upon   which   the 
order  is  based.     If  the  survey  and  location  are  identical,  that 
fact   must  be   clearly   and    distinctly   stated    in   the   field   notes. 
If   not   identical,   a   bearing   and    distance   must   be   given    from 
each   established   corner   of  survey  to  the  corresponding  corner 
of  the  location,  and  the  location  corner  must  be  fully  described, 
so  that  it  can  be  identified.     The  lines  of  the  location,  as  found 
upon  the  ground,  must  be  laid  down  upon  the  preliminary  plat 
in   such   a  manner  as   to   contrast  and  show   their   relations  to 
the   lines    of    survey. 

132.  In  view  of  the  principle  that  courses  and  distances  must 
give  way  when   in   conflict  with   fixed   objects   and  monuments, 
the    surveyor    will    not,    under    any    circumstances,    change    the 
corners  of  the  location  for  the  purpose  of  making  them  conform 
to  the  description  in  the  record.     If  the  difference  from  the  loca 
tion  be  slight,  it  may  be  explained  in  the  field  notes. 


276  MINING  LAW 

133.  No    mining    claim    located    subsequent   to    May    10,    1872, 
should  exceed  the  statutory  limit  in  width  on  each  side  of  the 
center   of   vein   or   1,500    feet   in    length,   and   all   surveys   must 
close  within   50-100   feet   in   1,000  feet,   and   the  error  must  not 
be  such  as.. to  make  the  location  exceed  the  statutory  limit,  and 
in  absence   of   other   proof   the   discovery    point   is   held   the   be 
the  center  of  the  vein  on  the  surface.     The  course  and  length 
of  the  vein   should  be  marked   upon   the   plat. 

134.  All  mineral   surveys  must  be  made  with  a  transit,   with 
or    without    solar    attachment,    by    which    the    meridian    can    be 
determined  independently  of  the  magnetic  needle,  and  all  courses 
must  be   referred   to  the   true  meridian.     The  variation   should 
be  noted  at  each  corner  of  the  survey.     The  true  course  of  at 
least  one  line  of  each  survey  must  be  ascertained  by  astronom 
ical  observations  made  at  the  time  of  the  survey;   the  data  for 
determining   the   same   and   details  as   to  how   these   data   were 
arrived  at  must  be  given.     Or,  in  lieu  of  the  foregoing,  the  sur 
vey  must  be  connected  with  some  line  the  true  course  of  which 
has  been  previously  established  beyond  question,  and  in  a  sim 
ilar  manner,  and,  when  such  lines  exist,  it  is   desirable  in   all 
cases  that  they  should  be   used   as  a  proof  of  the  accuracy   of 
subsequent  work. 

135.  Corner    No.    1    of    each    location    embraced    in    a    survey 
must  be  connected  by  course  and  distance  with   nearest  corner 
of  the  public  survey  or  with  a  United  States  location  monument, 
if  the  claim  lies  within  two  miles  of  such  corner  or  monument. 
If  both  are  within  the   required  distance,  the  connection  must 
be  with  the  corner  of  the  public  survey. 

136.  Surveys  and  connections  of  mineral  claims  may  be  made 
in    suspended    townships    in    the    same    manner    as    though    the 
claims  were  upon  unsurveyed  land,  except  as  hereinafter  speci 
fied,  by  connecting  them  with  independent  mineral  monuments. 
At  the  same  time,  the  position  of  any  public-land  corner  which 
may  be  found  in  the  neighborhood  of  the  claim  should  be  noted, 
so  that,  in  case  of  the  release  of  the  township  from  suspension, 
the  position  of  the  claim  can  be  shown  on  the  plat. 

137.  A   mineral    survey   must   not   be    returned    with    its    con 
nection   made   only   with   a   corner  of  the  public  survey,   where 


LAND  OFFICE  REGULATIONS  277 

the  survey  of  the  township  within  which  it  is  situated  is  under 
suspension,  nor  connected  with  a  mineral  monument  alone, 
when  situated  within  the  limits  of  a  township  the  regularity 
and  correctness  of  the  survey  of  which  is  unquestioned. 

138.  In  making  an  official  survey,  corner  No.  1  of  each  location 
must    be    established    at   the   corner   nearest   the   corner   of   the 
public  survey  or  location  monument,  unless  good  cause  is  shown 
for  its  being  placed  otherwise.     If  connections  are  given  to  both 
a  corner  of  the  public  survey  and  location  monument,  corners 
Nos.  1  should  be  placed  at  the  corner  nearest  the  corner  of  the 
public  survey.     When  a  boundary  line  of  a  claim   intersects  a 
section  line,  courses  and  distances  from  point  of  intersection  to 
the  Government  corners  at  each  end  of  the  half  mile  of  section 
line   so   intersected  must  be  given. 

139.  In  case  a  survey  is  situated  in  a  district  where  there  are 
no  corners  of  the  public  survey  and  no  monuments  within  the 
prescribed  limits,  a  mineral  monument  must  be  established,  in 
the  location  of  which   the   greatest   care  must  be  exercised   to 
insure  permanency  as  to  site  and  construction. 

140.  The    site,    when    practicable,    should    be    some    prominent 
point,    visible    for    a    long    distance    from    every    direction,    and 
should  be  so  chosen  that  the  permanency  of  the  monument  will 
not  be  endangered  by  snow,  rock,  or  landslides,  or  other  natural 
causes. 

141.  The  monument  should  consist   of  a  stone  not   less   than 
30  inches  long,  20  inches  wide,  and  6  inches  thick,  set  halfway 
in  the  ground,  with  a  conical  mound  of  stone  4  feet  high  and 
6  feet  base  alongside.     The  letters  U.  S.  L.  M.,  followed  by  the 
consecutive  number  of  the  monument  in   the   district,   must  be 
plainly   chiseled   upon  the   stone.     If   impracticable   to   obtain   a 
stone  of  required  dimensions,  then  a  post  8  feet  long,  6  inches 
square,  set  3  feet  in  the  ground,  scribed  as  for  a  stone  monu 
ment,  protected  by  a  well-built  conical  mound  of  stone  of  not 
less   than  3  feet  high  and  6  feet  base  around  it,  may  be  used. 
The  exact  point  for  connection  must  be  indicated  on  the  monu 
ment  by  an  X  chiseled  thereon;    if  a  post  is  used,  then  a  tack 
must  be  driven  into  the  post  to  indicate  the  point. 

142.  From    the    monument,    connections    by    course    and    dis- 


278  MINING  LAW 

tance  must  be  taken  to  two  or  three  bearing  trees  or  rocks,  and 
to  any  well-known  and  permanent  objects  in  the  vicinity,  such 
as  the  confluence  of  streams,  prominent  rocks,  buildings,  shafts, 
or  mouths  of  adits.  Bearing  trees  must  be  properly  scribed 
B.  T.  and  bearing  rocks  chiseled  B.  R.,  together  with  the  num 
ber  of  the  location  monument;  the  exact  point  on  the  tree  or 
stone  to  which  the  connection  is  taken  should  be  indicated  by 
a  cross  or  other  unmistakable  mark.  Bearings  should  also  be 
taken  to  prominent  mountain  peaks,  and  the  approximate  dis 
tance  and  direction  ascertained  from  the  nearest  town  or  min 
ing  camp.  A  detailed  description  of  the  locating  monument, 
with  a  topographical  map  of  its  location,  should  be  furnished 
the  office  of  the  surveyor-general  by  the  surveyor. 
'  143.  Corners  may  consist  of — 

First. — A  stone  at  least  24  inches  long  set  12  inches  in  the 
ground,  with  a  conical  mound  of  stone  1V2  feet  high,  2  feet 
base,  alongside. 

Second. — A  post  at  least  3  feet  long  by  4  inches  square,  set  18 
inches  in  the  ground  and  surrounded  by  a  substantial  mound 
of  stone  or  earth. 

Third. — A  rock  in  place. 

A  stone  should  always  be  used  for  a  corner  when  possible,  and 
when  so  used  the  kind  should  be  stated. 

144.  All    corners    must   be    established    in    a    permanent    and 
workmanlike  manner,  and  the  corner  and  survey  number  must 
be  neatly  chiseled  or  scribed  on  the  sides  facing  the  claim.    The 
exact  corner  point  must  be  permanently  indicated  on  the  corner. 
When   a    rock   in   place   is   used,   its    dimensions   above   ground 
must  be  stated  and  a  cross  chiseled  at  the  exact  corner  point. 

145.  In  case  the  point  for  the  corner  be  inaccessible   or  un 
suitable  a  witness  corner,  which  must  be  marked  with  the  let 
ters  W.  C.  in  addition  to  the  corner  and  survey  number,  should 
be  established.     The  witness  corner  should  be   located   upon   a 
line  of  the  survey  and  as  near  as  possible  to  the  true  corner, 
with  which  is  must  be  connected  by  course  and  distance.     The 
reason  why   it  is   impossible   or   impracticable  to   establish   the 
true   corner  must  always   be  stated   in  the  field   notes,   and   in 


LAND  OFFICE  REGULATIONS  279 

running  the  next  course  it  should  be  stated  whether  the  start 
is  made  from  the  true  place  for  corner  or  from  witness  corner. 

146.  The    identity    of    all    corners    should    be    perpetuated    by 
taking  courses  and  distances  to  bearing  trees,  rocks,  and  other 
objects,    as    prescribed    in   the   establishment   of   location    monu 
ments,  and  when  no  bearings  are  given  it  should  be  stated  that 
no  bearings  are  available.    Permanent  objects  should  be  selected 
for  bearings  whenever  possible. 

147.  If  an  official  mineral   survey   has   been  made   in  the  vi 
cinity,  within   a  reasonable   distance,  a  further  connecting  line 
should  be  run  to  some  corner  thereof;   and  in  like  manner  all 
conflicting   surveys   and  locations  should   be   so   connected,   and 
the  corner  with  which  connection  is  made  in  each  case  described. 
Such  connections  will  be  made  and  conflicts  shown  according  to 
the  boundaries  of  the  neighboring  or  conflicting  claims  as  each 
is  marked,   defined,   and  actually   established   upon  the  ground. 
The   mineral   surveyor   will   fully   and   specifically   state  in   his 
return  how  and  by  what  visible  evidences  he  was  able  to  identify 
on  the  ground  the  several  conflicting  surveys  and  those  which 
appear    according   to    their   returned    tie    or   boundary    lines    to 
conflict,  if  they  were  so  identified,  and  report  errors  or  discrep 
ancies  found  by  him  in  any  such  surveys.     In  the  survey  of  con 
tiguous  claims  which  constitute  a  consolidated  group,  where  cor 
ners  are  common,  bearings  should  be  mentioned  but  once. 

148.  The    mineral    surveyor    should    note    carefully    all    topo 
graphical   features   of   the  claim,   taking   distances   on   his   lines 
to  intersections  with  all  streams,  gulches,  ditches,  ravines,  moun 
tain   ridges,   roads,  trails,  etc.,   with  their  widths,  courses,  and 
other  data  that  may  be  required  to  map  them   correctly.     All 
municipal  or  private  improvements,  such  as  blocks,  streets,  and 
buildings,  should  be  located. 

149.  If,  in  running  the  exterior  lines  of  a  claim,   the  survey 
is  found  to  conflict  with  the  survey  of  another  claim,  the  dis 
tances  to   the   points   of   intersection,   and  the   courses   and  dis 
tances  along  the  line  intersected  from  an  established  corner  of 
such  conflicting  claim   to  such  point  of  intersection,   should  be 
Described  in  the  field  notes:    Provided,  That  where  a  corner  of 


280  MINING  LAW 

the  conflicting  survey  falls  within  the  claim  being  surveyed, 
such  corner  should  be  selected  from  which  to  give  the  bearing, 
otherwise  the  corner  nearest  the  intersection  should  be  taken. 
The  same  rule  should  govern  in  the  survey  of  claims  embracing 
two  or  more  locations  the  lines  of  which  intersect. 

150.  A  lode  and  mill-site  claim  in  one  survey  will  be  distin 
guished   by  the   letters  A  and  B   following  the   number   of   the 
survey.    The  corners  of  the  mill  site  will  be  numbered  independ 
ently  of  those  of  the  lode.    Corner  No.  1  of  the  mill  site  must  be 
connected   with  a   corner  of  the  lode  claim   as  well  as  with  a 
corner  of  the  public  survey  or  United  States  location  monument. 

151.  When  a  placer  claim  includes  lodes,  or  when  several  con 
tiguous  placer  or  lode  locations  are  included  as  one  claim  in  one 
survey,  there  must  be  given  to  the  corners  of  each  location  con 
stituting  the  same  a  separate  consecutive  numerical  designation, 
beginning  with  corner  No.  1  in  each  case. 

152.  Throughout  the  description  of  the  survey,  after  each  ref 
erence  to  the  lines  or  corners  of  a  location,  the  name  thereof 
must  be  given,  and  if  unsurveyed,  the  fact  stated.     If  reference 
is  made   to   a  location  included   in   a   prior   official   survey,   the 
survey  number  must  be  given,  followed  by  the  name  of  the  loca 
tion.    Corners  should  be  described  once  only. 

153.  The  total  area  of  each  location  and  also  the  area  in  con 
flict  with   each   intersection   survey  or   claim   should   be   stated. 
But  when  locations  embraced  in  one  survey  conflict  with  each 
other  such  conflicts  should  only  be  stated  in  connection  with  the 
location  from  which  the  conflicting  area  is  excluded. 

154.  It  should  be  stated  particularly  whether  the  claim  is  upon 
surveyed  or  unsurveyed  public  lands,  giving  in  the  former  case 
the  quarter  section,  township,  and  range  in  which  it  is  located, 
and  the  section  lines  should  be  indicated  by  full  lines  and  the 
quarter-section  lines  by  dotted  lines. 

155.  The  title-page  of  the  field  notes  must  contain  the  post- 
office  address  of  the  claimant  or  his  authorized  agent. 

156.  In  the  mineral  surveyor's  report  of  the  value  of  the  im 
provements   all   actual   expenditures   and   mining   improvements 
made  by  the  claimant  or  his  grantors,  having  a  direct  relation  to 


LAND  OFFICE  REGULATIONS  281 

the  development  of  the  claim,  must  be  included  in  the  estimate. 

157.  The  expenditures  required  may  be  made  from  the  surface 
or  in  running  a  tunnel,  drifts,  or  cross-cuts  for  the  development 
of  the  claim.     Improvements   of  any   other  character,   such   as 
buildings,  machinery,  or  roadways,  must  be  excluded  from  the 
estimate,  unless  it  is  shown  clearly  that  they  are  associated  with 
actual  excavations,  su.ch  as  cuts,  tunnels,  shafts,  etc.,  are  essen 
tial  to  the  practical  development  of  and  actually   facilitate  the 
extraction  of  mineral  from  the  claim. 

158.  All  mining  and   other   improvements  claimed  will   be   lo 
cated  by  courses  and  distances  from  corners  of  the  survey,  or 
from  points  on  the  center  or  side  lines,  specifying  with  particu 
larity  and  detail  the  dimensions  and  character  of  each,  and  the 
improvements  upon  each  location  should  be  numbered  consecu 
tively,  the  point  of  discovery  being  always  No.  1.     Improvements 
made  by  a  former  locator  who  has  abandoned  his  claim  can  not 
be  included  in  the  estimate,  but  should  be  described  and  located 
in  the  notes  and  plat. 

159.  In  case  of  a  lode  and  mill-site  claim  in  the  same  survey 
the  expenditure  of  five  hundred  dollars  must  be  shown  upon  the 
lode  claim. 

160.  If  the  value  of  the  labor  and  improvements  upon  a  min 
eral  claim  is  less  than  five  hundred  dollars  at  the  time  of  survey, 
the  mineral  surveyor  may  file  with  the  surveyor-general  supple 
mental    proof   showing   five    hundred    dollars    expenditure   made 
prior  to  the  expiration  of  the  period  of  publication. 

161.  The  mineral  surveyor  will  return  with  his  field  notes  a 
preliminary   plat  on  blank  sent   to   him  for  that   purpose,   pro 
tracted  on  a  scale  of  two  hundred  feet  to  an  inch,  if  practicable. 
In  preparing  plats  the  top  is  north.     Copy  of  the  calculations  of 
areas  by  double  meridian  distances  and  of  all  triangulations  or 
traverse  lines  must  be  furnished.     The  lines  of  the  claim  sur 
veyed  should  be  heavier  than  the  lines  of  conflicting  claims. 

162.  Whenever  a  survey  has  been  reported  in   error  the  sur 
veyor  who  made  it  will  be  required  to  promptly  make  a  thor 
ough  examination  upon  the  premises  and  report  the  result,  under 
oath,  to  the  surveyor-general's  office.     In  case  he  finds  his  survey 


282  MINING  LAW 

in  error  he  will  report  in  detail  all  discrepancies  with  the  original 
survey  and  submit  any  explanation  he  may  have  to  offer  as  to 
the  cause.  If,  on  the  contrary,  he  should  report  his  survey  cor 
rect,  a  joint  survey  will  be  ordered  to  settle  the  differences  with 
the  surveyor  who  reported  the  error.  A  joint  survey  must  be 
made  within  ten  days  after  the  date  of  order  unless  satisfactory 
reasons  are  submitted,  under  oath,  for  ja  postponement.  The 
field  work  must  in  every  sense  of  the  term  be  a  joint  and  not  a 
separate  survey,  and  the  observations  and  measurements  taken 
with  the  same  instrument  and  chain,  previously  tested  and  agreed 
upon. 

163.  The  mineral  surveyor  found  in  error,  or,  if  both  are  in 
error,  the  one  who  reported  the  same,  will  make  out  the  field 
notes  of  the  joint  survey,  which,  after  being  duly  signed  and 
sworn  to  by  both  parties,  must  be  transmitted  to  the  surveyor- 
general's  office. 

164.  Inasmuch  as  amended  surveys  are  ordered  only  by  special 
instructions  from  the  General  Land  Office,  and  the  conditions  and 
circumstances    peculiar   to   each   separate   case   and   the   objects 
sought  by  the  required  amendment,  alone  govern  all  special  mat 
ters  relative  to  the  manner  of  making  such  survey  and  the  form 
and  subject-matter  to  be  embraced  in  the  field  notes  thereof,  but 
few  general  rules  applicable  to  all  cases  can  be  laid  down. 

165.  The  amended  survey  must  be  made  in  strict  conformity 
with,  or  be  embraced  within,  the  lines  of  the  original  survey.    If 
the  amended  and  original  surveys  are  identical,  that  fact  must 
be  clearly  and  distinctly  stated  in  the  field  notes.    If  not  identical, 
a   bearing   and   distance   must  be   given   from    each   established 
corner  of  the  amended  survey  to  the  corresponding  corner  of  the 
original  survey.    The  lines  of  the  original  survey,  as  found  upon 
the  ground,  must  be  laid  down  upon  the  preliminary  plat  in  such 
manner  as  to  contrast  and  show  their  relation  to  the  lines  of 
the  amended  survey.  , 

166.  The  field  notes  of  the  amended  survey  must  be  prepared 
on  the  same  size  and  form  of  blanks  as  are  the  field  notes  of  the 
original  survey,  and  the  word  "amended"  must  be  used  before 
the  word  "survey"  wherever  it  occurs  in  the  field  notes. 


LAND  OFFICE  REGULATIONS  283 

167.  Mineral  surveyors  are  required  to  make  full  examinations 
of  all  placer  claims  at  the  time  of  survey  and  file  with  the  field 
notes  a  descriptive  report,  in  which  will  be  described — 

(a)  The  quality  and  composition  of  the  soil,  and  the  kind  and 
amount  of  timber  and  other  vegetation. 

(&)  The  locus  and  size  of  streams,  and  such  other  matters  as 
may  appear  upon  the  surface  of  the  claims. 

(c)  The  character  and  extent  of  all  surface  and  underground 
workings,  whether  placer  or  lode,  for  mining  purposes,  locating 
and  describing  them. 

(d)  The  proximity  of  centers  of  trade  or  residence. 

(e)  The  proximity  of  well-known  systems  of  lode  deposits  or 
of  individual  lodes. 

(f)  The  use  or  adaptability  of  the  claim   for  placer  mining, 
and  whether  water  has  been  brought  upon  it  in  sufficient  quantity 
to  mine  the  same,  or  whether  it  can  be  procured  for  that  purpose. 

(g)  What  works  or  expenditures  have  been  made  by  the  claim 
ant  or  his  grantors  for  the  development  of  the  claim,  and  their 
situation  and  location  with  respect  to  the  same  as  applied  for. 

(h)  The  true  situation  of  all  mines,  salt  licks,  salt  springs, 
and  mill  sites  which  come  to  the  surveyor's  knowledge,  or  a  re 
port  by  him  that  none  exist  on  the  claim,  as  the  facts  may  war 
rant. 

(i)  Said  report  must  be  made  under  oath  and  duly  corrob 
orated  by  one  or  more  disinterested  persons. 

168.  The  employing  of  claimants,  their  attorneys,  or  parties  in 
interest,  as  assistants  in  making  surveys  of  mineral  claims  will 
not  be  allowed. 

169.  The  field  work  must  be  accurately  and  properly  performed 
and  returns  made  in  conformity  with  the  foregoing  instructions. 
Errors  in  the  survey  must  be  corrected  at  the  surveyor's  own 
expense,  and  if  the  time  required  in  the  examination  of  the  re 
turns  is  increased  by  reason  of  neglect  or  carelessness,  he  will 
be  required  to  make  an  additional  depo.sit  for  office  work.     He 
will  be  held  to  a  strict  accountability  for  the  faithful  discharge 
of  his  duties,  and  will  be  required  to  observe  fully  the  require 
ments  and  regulations  in  force  as  to  making  mineral  surveys. 
If  found  incompetent  as  a  surveyor,  careless  in  the  discharge  of 


284  MINING  LAW 

his  duties,  or  guilty  of  a  violation  of  said  regulations,  his  ap 
pointment  will  be  promptly  revoked. 

S.  V.  PROUDFIT, 

Approved  March  29,  1909.  Acting  Commissioner. 

R.  A.  BALLINGER, 

Secretary. 

No  additional  regulations  have  been  issued  or  changes  made 
to  March  4,  1911. 


APPENDIX  C 

OFFICES  OF  SURVEYORS-GENERAL 

Alaska     Juneau 

Arizona    Tucson 

California   San  Francisco 

Colorado   Denver 

Idaho    Boise  City 

Montana Helena 

Nevada    Reno 

New    Mexico Santa  Fe 

Oregon     Portland 

South  Dakota    Huron 

Utah    . Salt  Lake  City 

Washington    Olympia 

Wyoming Cheyenne 


285 


286  MINING  LAW 


Manual  of  Instructions  for  the  Survey  of  the  Mineral 
Lands  of  the  United  States 


DEPARTMENT  OF  THE  INTERIOR, 

GENERAL  LAND  OFFICE, 
Washington,  D.  C.,  September  11,  1908. 
To  UNITED  STATES  MINERAL  SURVEYORS. 

SIRS:  These  regulations  are  chiefly  compiled  from  the  practice 
of  the  various  surveying  districts,  no  changes  or  additions  being 
made,  except  where  necessary  to  secure  uniformity  and  to  con 
form  to  present  interpretations  of  the  law. 

You  are  expected  to   strictly  comply  with   these   instructions, 
and   no   survey  will   be   accepted   or  approved  by   the   surveyor- 
general  until  all  the  requirements  herein  have  been  fully  met. 
Very  respectfully, 

FRED  DENNETT, 

Commissioner. 
Approved,  October  6,  1908. 
FRANK  PIERCE, 

First  Assistant  Secretary. 


GENERAL  INFORMATION 

APPOINTMENTS 

1.  Under    section    2334,    United    States    Revised    Statutes,    the 
United  States  surveyor-general  "may  appoint  in   each  land  dis 
trict  containing  mineral  lands  as  many  competent  surveyors  as 
shall  apply  for  appointment  to  survey  mining  claims." 

2.  Capable  persons   desiring  such  appointments  should   there- 


INSTRUCTIONS  FOR  SURVEYS  287 

fore  file  their  applications  with  the  surveyor-general  for  the  dis 
trict  wherein  appointment  is  asked,  who  will  furnish  all  informa 
tion  necessary. 

3.  Mineral  surveyors  may,  at  the  same  time,  be  appointed  in 
more  than  one  State  or  land  district.     (20  L.  D.,  163.) 

4.  The  surveyors-general  have  authority  to  suspend  or  revoke 
the  appointments  of  mineral  surveyors  for  cause.    The  surveyors, 
however,  will  be  allowed  the  right  of  appeal  from  the  action  of 
the  surveyor-general  in  the  usual  manner.     The  appeal  must  be 
filed  with  the  surveyor-general,  who  will  at  once  transmit  the 
same,  with  a  full  report,  to  the  General  Land  Office.     (20  L.  D., 
283.) 

5.  Neither  the  surveyor-general  nor  the  Commissioner  of  the 
General  Land  Office  has  jurisdiction  to  settle  differences,  relative 
to  the  payment  of  charges  for  field  work,  between  mineral  sur 
veyors  and  claimants.    These  are  matters  of  private  contract  and 
must  be  enforced  in  the  ordinary  manner,  i.  e.,  in  the  local  courts. 
The  department  has,  however,  authority  to  investigate  charges 
affecting  the  official  actions  of  mineral  surveyors,  including  com 
binations  to  fix  prices  for  survey  work,  and  will,  on  sufficient 
cause  shown,  suspend  or  revoke  the  appointment  of  the  surveyor. 

6.  Where  error  in  the  original  survey  appears  to  be  the  fault 
of  the  mineral  surveyor  who  made  the  survey,  he  should  be  re 
quired  to  make  the  necessary  corrections  in  the  field  as  speedily 
as   practicable;    and  upon  his  failure  or  refusal,   without  satis- 

'  factory  reason,  to  comply  with  instructions  within  a  specified 
time,  he  should  be  called  upon  to  show  why  his  appointment 
should  not  be  suspended  or  revoked  for  willful  neglect  or  incom- 
petency.  In  the  event  he  fails  or  refuses  to  comply  with  the 
instructions,  the  mineral  claimant  will  be  notified  and  given  a 
reasonable  time  to  apply  for  an  amended  survey. 

7.  These  instructions  are  subject  to  the  limitations  of  section 
2324,  United  States  Revised  Statutes,  so  far  as  the  same  refers 
to  local  laws  and  customs. 

8.  The   Commissioner   of   the   General   Land   office   is   ex-officio 
United   States   surveyor-general   for  Arkansas  and   Florida,   and 
all  surveys  in  Oklahoma  are  made  under  his  direction  as  Com 
missioner. 


288  MINING  LAW 


BONDS 

9.  All  bonds  of  mineral   surveyors  must  be  submitted  to  the 
Commissioner  of  the  General  Land  Office  for  approval. 

10.  The  appointment  of  a  mineral  surveyor  is  not  for  any  fixed 
period,  the  continuation  thereof  depending  upon  the  character  of 
the  service  rendered.     The  surveyor-general  will,  therefore,  not 
appoint   mineral   surveyors   for   a   specified   term.      While   under 
the  act  of  March  2,  1895  (28  Stat,  807),  mineral  surveyors'  bonds 
are  examined  every  two  years  as  to  their  sufficiency,  and  new 
bonds  required  every  four  years  from  their  dates,  the  latter  re 
quirement  is  not  because  the  term  has  then  expired. 

11.  A  mineral  surveyor  is  not  authorized  to  perform  any  work 
under  his  appointment  until   his   official  bond   shall   have   been 
accepted  by  the  Commissioner  of  the  General  Land  Office.     The 
bond  shall  be  in  a  sum  not  less  than  $5000,   and  will  become 
effective  and  the  liability  of  the  principal  and  surety  will  begin 
with  the  acceptance  of  the  bond  by  the  Commissioner. 

12.  Bonds  can  not  be  canceled,  nor  can  the  surety  thereto  with 
draw,  to  the  extent  of  relieving  the  surety  of  liability  for  defaults 
during  the  time  the  principal  performed  his  duties  thereunder. 
The  most  that  may  be  done  is  to  relieve  the  surety  of  future  re 
sponsibility  by  requiring  a  new  bond,  or  by  the  retirement  from 
office  of  the  principal,  by  formal  notice  from  the  Commissioner 
of  the  General  Land  Office. 

13.  Mineral  surveyors'  bonds  will  be  examined  every  two  years 
by  the  surveyor-general  as  to  their  sufficiency,   and  every   four 
years   such  bonds  shall  be   renewed   as   provided   by  the  act   of 
March  2,  1895    (28   Stat,  807).     Only  corporate  sureties  will  be 
accepted. 

14.  If  at  any  time  the  surveyor-general  deems  the  surety  on  a 
bond  insufficient,  he  will  report  the  matter  to  the  Commissioner 
of  the  General  Land  Office  for  instructions,  notifying  the  min 
eral  surveyor  of  his  action,  and  the  mineral   surveyor  will  be 
required  to  renew  his  bond  within  sixty  days  under  penalty  of 
revocation  of  his  appointment,  unless  satisfactory  explanation  of 
delay   is   offered  therefor.     Unsatisfactory  service,   also,   will   be 
deemed  sufficient  cause  for  a  revocation  of  an  appointment,  but 


INSTRUCTIONS  FOR  SURVEYS  289 

the  surveyor-general's  action  therein,  subject  to  appeal,  will  re 
quire  the  approval  of  the  Commissioner  of  the  General  Land 
Office. 

15.  The  acceptance  of  a  bond  will  be  based  upon  an  evident 
desirability  or  necessity  therefor,  and,  prior  to  an  acceptance  of 
such  bond,  the  principal  will  be  required  to  make  satisfactory 
explanation  to  the  surveyor-general,  supporting  his  tender  of 
same. 

INSTRUCTIONS  TO  MINERAL  SURVEYORS 

GENERAL. 

1.  All   official   communications   must  be  addressed  to   the  sur 
veyor-general*     You  will  always  refer  to  the  date  and  subject- 
matter  of  the  letter  to  which   you  reply,  and  when   a  mineral 
claim  is  the  subject  of  correspondence,  you  will  give  the  name 
and  survey  number. 

2.  You  should  keep  a  complete  record  of  each  survey  made  by 
you,  and  of  the  facts  coming  to  your  knowledge  at  the  time,  as 
well  as  copies  of  all  your  field  notes,   reports,  and  official   cor 
respondence,   in   order  that   such   evidence   may   be   readily   pro 
duced  when  called  for  at  any  future  time. 

3.  Field  notes  and  other  reports  must  be  written  in  a  clear  and 
legible   hand  or  typewritten,   in   noncopying  ink,   and   upon   the 
proper  blanks   gratuitously   furnished  you  by  the  surveyor-gen 
eral's  office  upon  application.    No  interlineations  or  erasures  will 
be  allowed,  and  no  abbreviations  or  symbols  must  be  used,  except 
such  as  are  indicated  in  the  specimen  field  notes. 

4.  No  return  by  you  will  be  recognized  as  official  unless  it  is 
over   your   signature  as   a  United   States   mineral  surveyor   and 
made  in  pursuance  of  a  special  order  from  the  surveyor-general's 
office.     After  you  have  received  an  order  for  survey,  you  are  re 
quired  to  make  the  survey  and  return  correct  field  notes  thereof 
to  the  surveyor-general's  office  without  delay. 

5.  The  claimant  is  required,  in  all  cases,  to  make  satisfactory 


*For   list   of  offices   of   surveyors-general    in   mining   districts, 
see  page  285. 


290  MINING  LAW 

arrangements  with  you  for  the  payment  for  your  services  and 
those  of  your  assistants  in  making  the  survey,  as  the  United 
States  will  not  be  held  responsible  for  the  same.  You  will  call 
the  attention  of  applicants  for  mineral-survey  orders  to  the  re 
quirements  of  paragraph  12  of  the  circular,  page  309.  (Sec. 
2334,  U.  S.  Rev.  Stats.,  par.  90,  Mining  Circular,  May  21,  1907.) 

6  You  will  promptly  notify  the  surveyor-general's  office  of  any 
change  in  your  post-office  address.     (20  L.  D.,  163.) 

7.  You  are  precluded  from  acting,  either  directly  or  indirectly, 
as  attorney  in  mineral  claims.    Your  duty  in  any  particular  case 
ceases  when  you  have  executed  the  survey  and  returned  the  field 
notes  and  preliminary   plat,  with  your  report,   to  the  surveyor- 
general.      You   will   not   be    allowed   to   prepare   for   the   mining 
claimant  the  papers  in  support  of  his  application  for  patent,  or 
otherwise    perform    the   duties   of   an   attorney   before    the    land 
office  in  connection  with  a  mining  claim.     You  are  not  permitted 
to  combine  the  duties  of  surveyor  and  notary  public  in  the  same 
case  by   administering  oaths   to   the   parties   in   interest.     It   is 
preferable   that   both  preliminary   and   final   oaths   of   assistants 
should  be  taken  before  some  officer  duly  authorized  to  administer 
oaths,  other  than  the  mineral  surveyor.     In  cases,  however,  where 
great  delay,  expense,  or  inconvenience  would  result  from  a  strict 
compliance  with  this  rule,  you  are  authorized  to  administer  the 
necessary  oaths  to  your  assistants,  but  in  each  case  where  this 
is   done,  you  will  submit  to  the  proper  surveyor-general   a  full 
written  report  of  the  circumstances  which  required  your  stated 
action;   otherwise  you  must  have  absolutely  nothing  to  do  with 
the  case,  except  in  your  official  capacity  as  surveyor. 

THE   FIELD   WORK 

8.  The  survey  made  and  reported  must,  in  every  case,  be  an 
actual  survey  on  the  ground  in  full  detail,  made  by  you  in  per 
son  after  the  receipt  of  the  order,  and  without  reference  to  any 
knowledge  you  may  have  previously  acquired  by  reason  of  hav 
ing,  made  the  location  survey  or  otherwise,  and  must  show  the 
actual  facts  existing  at  the  time.     This  precludes  you  from  cal 
culating  the  connections  to  corners  of  the  public  survey  and  min 
eral  monuments,  or  any  other  lines  of  your  survey  through  prior 


INSTRUCTIONS  FOR  SURVEYS  291 

surveys,  unless  it  is  satisfactorily  shown  in  your  report  that  you 
have  retraced  such  lines  and  found  them  to  be  correct.  (6  L.  D., 
718;  7  L.  D.,  81.) 

The  term  survey  in  these  instructions  applies  not  only  to  the 
usual  fieldwork,  but  also  to  the  examinations  required  for  the 
preparation  of  your  affidavits  of  $500  expenditure,  descriptive 
reports  on  placer  claims,  and  all  other  reports. 

SURVEY  AND   LOCATION 

9.  The  survey  of  a  mining  claim  may  include  several  contiguous 
locations  owned  in  common,  but  such  survey  must,  in  conformity 
with   statutory    requirements,    distinguish    the   several    locations, 
and  exhibit  the  boundaries  of  each.     (5  L.  D.,  199;   6  L.  D.,  808; 
29  L.  D.,  585.) 

10.  The  survey  must  be  made  in  strict  conformity  with,  or  be 
embraced  within,  the  lines  of  the  location  upon  which  the  order 
is  based.    If  the  survey  and  location  are  identical,  that  fact  must 
be    clearly    and    distinctly    stated    in    your    field    notes.      If    not 
identical,  a  bearing  and  distance  must  be  given   from  each  es 
tablished  corner  of  the  survey  to  the  corresponding  corner  of  the 
location,  and  the  location  corner  must  be  fully  described,  so  that 
it  can  be  identified.    The  lines  of  the  location,  as  found  upon  the 
ground,  must  be  laid  down  upon  the  preliminary  plat  in  such  a 
manner  as  to  contrast  and  show  their  relation  to  the  lines  of 
survey.     (1  L.  D.,  581.) 

The  survey  will  be  given  but  one  number.  A  location  under 
the  mining  laws  can  legally  be  made  only  of  a  tract  or  piece  of 
land  embraced  within  one  set  of  boundary  lines;  and  two  or  more 
tracts  merely  cornering  with  each  other  can  not  legally  be  em 
braced  in  a  single  location.  (33  L.  D.,  560;  35  L.  D.,  485.) 

11.  In  accordance  with  the  principle  that  courses  and  distances 
must  give  way  when  in  conflict  with  fixed   objects   and  monu 
ments,  you  will  not  under  any  circumstances  change  the  corners 
of  the  location  for  the  purpose  of  making  them  conform  to  the 
description  in  the  record.     If  the  difference  from  the  location 'be 
slight,  it  may  be  explained  in  the  field  notes. 

The  act  of  Congress  of  May  10,  1872,  expressly  provides  that 
"the  location  must  be  distinctly  marked  upon  the  ground  so  that 


292  MINING  LAW 

its  boundaries  can  be  readily  traced,"  and  "that  all  records  of 
mining  claims  hereafter  made  shall  contain  the  name  or  names 
of  the  locators,  the  date  of  the  location,  and  such  a  description 
of  the  claim  or  claims  located,  by  reference  to  some  natural 
object  or  permanent  monument,  as  will  identify  the  claim." 
(Sec.  2324,  U.  S.  Rev.  Stats.) 

These  provisions  of  the  law  must  be  strictly  complied  with  in 
each  case  to  entitle  the  claimant  to  a  survey  and  patent,  and, 
therefore,  should  a  claimant  under  a  location  made  subsequent 
to  the  passage  of  the  act  of  May  10,  1872,  who  has  not  complied 
with  said  requirements  in  regard  to  marking  the  location  upon 
the  ground  and  recording  the  same,  apply  for  a  survey,  you  will 
decline  to  make  it.  (1  L.  D.,  581.)  You  will  then  report  the 
facts  to  the  surveyor-general  and  await  further  instructions. 

Should  the  survey  be  applied  for  under  a  location  made  prior 
to  May  10,  1872,  under  section  2332,  United  States  Revised  Stat 
utes,  in  making  the  survey  thereof  you  will  be  governed  by  the 
special  instructions  accompanying  the  order  for  survey. 

No  mining  claim  located  subsequent  to  May  10,  1872,  should 
exceed  the  statutory  limit  in  width  on  each  side  of  the  centre 
of  vein,  or  1,500  feet  in  length,  and  all  surveys  must  close  with 
in  50  to  100"  feet  in  1,000  feet,  and  the  error  must  not  be  such 
as  to  make  the  location  exceed  the  statutory  limit;  and  in  absence 
of  other  proof  the  discovery  point  is  held  to  be  the  centre  of  the 
vein  on  the  surface.  The  course  and  length  of  the  vein  should 
be  marked  upon  the  plat  and  specifically  described  in  the  field 
notes. 

LODE   LINE   AND   END   LINES 

It  was  held  (syllabus)  in  35  L.  D.,  22,  that— 

There  is  no  warrant  in  the  mining  laws  for  extending,  arbi 
trarily  and  without  any  basis  of  fact  therefor,  the  vein  or  lode 
line  of  a  location  in  an  irregular  and  zigzag  manner  for  the  pur 
pose  of  controlling  the  length  or  situation  of  the  exterior  lines 
of  the  location  to  suit  the  convenience,  real  or  imagined,  of  the 
locator. 

The  end  lines  of  a  lode  location  must  be  straight  and  parallel 
to  each  other  and  when  at  right  angles  with  the  side  lines  may 
not  exceed  six  hundred  feet  in  length. 

The  mining  law  contemplates  that  the  end  lines  of  a  lode  claim 


INSTRUCTIONS  FOR  SURVEYS  293 

shall  have  substantial  existence  in  fact,  and  in  length  shall  rea 
sonably  comport  with  the  width  of  the  claim  as  located. 

INSTRUMENT 

12.  All  mineral  surveys  must  be  made  with  a  transit,  either 
with  or  without  a  solar  attachment,  by  which  the  meridian  can 
be   determined    independently    of   the   magnetic    needle,    and    all 
courses  must  be  referred  to  the  true  meridian.     The  variation 
should  be  noted  at  each  corner  of  the  survey. 

THE   TRUE   MERIDIAN 

13.  The  true  course  of  at  least  one  line  of  each  survey  must 
be  ascertained  by  astronomical  observations,  i.  e.,  either  Polaris 
or  sun  observations,  made  at  the  time  of  the  survey;   the  data 
for  determining  the  same  and  details  as  to  how  these  data  were 
arrived  at  must  be  given.     Or,  in  lieu  of  the  foregoing,  the  sur 
vey  must  be  connected  with  some  line  the  true  course  of  which 
has  been  previously  established  beyond  question,  and  in  a  simi 
lar  manner  by  yourself,   and,   when   such  lines   exist,   it   is   de 
sirable  in  all  cases  that  they  should  be  used  as  a  proof  of  the 
accuracy  of  subsequent  work.     In   this   connection   you  will  be 
governed  by   the  instructions   for  methods   of  obtaining  a  true 
meridian. 

CONNECTIONS 

14.  Connect  corner  No.  1   of  each  location   embraced   in  your 
survey  by  course  and  distance  with  nearest  corner  of  the  public 
survey  or  with  a  United  States  mineral  monument  if  the  claim 
lies  within  2  miles  of  such  corner  or  monument.     If  both  are 
within  the  required  distance,  you  must  connect  with  the  nearest 
corner  of  the  public  survey.     (7  L.  D.,  475;  paragraph  36,  Mining 
Circular,  May  21,  1907.) 

(a)  You  will  make  surveys  and  connections  of  mineral  claims 
in  suspended  townships,  so  long  as  they  remain  suspended,  in 
the  same  manner  as  though  the  claims  were  upon  unsurveyed 
land,  except  as  hereinbefore  specified,  by  connecting  them  with 
independent  mineral  monuments.  At  the  same  time  you  will 
note  the  position  of  any  public  land  corner  which  may  be  found 
in  the  neighborhood  of  the  claim,  so  that,  in  case  of  the  release 


294  MINING  LAW 

of  the  township  plat  from  suspension,  the  position  of  the  claim 
can  be  shown  on  the  plat. 

(&)  A  mineral  survey  must  not  be  returned  with  its  connec 
tion  made  only  with  a  corner  of  the  public  survey,  where  the 
survey  of  the  township  within  which  it  is  situated  is  under 
suspension,  nor  connected  with  a  mineral  monument  alone  when 
situated  within  the  limits  of  a  township  or  within  2  miles  of 
a  corner  thereof  the  regularity  and  correctness  of  the  survey 
of  which  is  unquestioned. 

If  a  mining  claim  is  situated  within  the  limits  of  a  township, 
the  regularity  and  correctness  of  the  survey  of  which  is  unques 
tioned,  but  no  corner  of  the  public  survey  can  be  found  within 
2  miles  of  the  claim  after  diligent  search,  connection  may  be 
made  with  a  mineral  monument,  the  mineral  monument  to  be 
connected  with  a  regularly  established  survey  corner. 

(c)  In  making  an  official  survey  hereafter  you  will  establish 
corner  No.  1  of  each  location  embraced  in  your  survey  at  the 
corner  nearest  the  corner  of  the  public  survey  or  mineral  monu 
ment,  unless  good  cause  is  shown  for  its  being  placed  other 
wise.  If  connections  are  given  to  both  a  corner  of  the  public 
survey  and  mineral  monument,  corners  Nos.  1  should  be  placed 
at  the  end  nearest  the  corner  of  the  public  survey. 

15.  When    a   boundary    line    of   a    mineral    claim    intersects    a 
section  line,  give  courses  and  distances  from  the  points  of  inter 
section  to  the  corners  of  the  public  surveys  at  each  end  of  the 
half  mile  of  section  line  so  intersected. 

MINERAL   MONUMENTS 

16.  In  case  your  survey  is  situated  in  a  district  where  there 
are  no  corners  of  the  public  survey  and  no  monuments  within 
the  prescribed   limits,  you  will  proceed   to   establish  a  mineral 
monument,  in  the  location  of  which  you  will  exercise  the  great 
est  care  to  insure  permanency  as  to  site  and  construction. 

The  site,  when  practicable,  should  be  some  prominent  point, 
visible  for  a  long  distance  from  every  direction,  and  should  be 
so  chosen  that  the  permanency  of  the  monument  will  not  be 
endangered  by  snow,  rock  or  landslides,  or  other  natural  causes. 
Its  position  with  reference  to  latitude  and  longitude  should  be 


INSTRUCTIONS  FOR  SURVEYS  295 

determined   and   stated   as   accurately    as   the   instruments    used 
will  permit. 

17.  The  monument  should  consist  of  a  stone  not  less  than  30 
inches  long,  20  inches  wide,  and  6  inches  thick,  set  halfway  in 
the  ground,  with  a  conical  mound  of  stone  4   feet  high  and  6 
feet  base  alongside.     The  letters  U.S.M.M.,  followed  by  the  con 
secutive  number  of  the  monument  in  the  district,  must  be  plainly 
chiseled  upon  the  stone.     If  impracticable  to  obtain  a  stone  of 
required   dimensions,   then  a  post  8   feet  long,   6   inches   square, 
set  3  feet  in  the  ground,  scribed  as  for  a  stone  monument,  pro 
tected  by  a  well-built  conical  mound  of  stone  of  not  less  than 
3  feet  high  and  6  feet  base  around  it,  may  be  used.     The  exact 
point  for  connection  must  be  indicated  on  the  monument  by  a 
-|-  chiseled  thereon;  if  a  post  is  used,  then  a  tack  must  be  driven 
into  the  post  to   indicate  the   point.     Any   necessary   departure 
from    the   prescribed  material   and   size   of  monument   must   be 
fully  explained. 

18.  From   the  monument  connections   by   course   and   distance 
must  be  taken  to  two  or  three  bearing  trees  or  rocks,  and  to 
any    well-known    and    permanent    objects    in    the    vicinity,    such, 
as  the  confluence  of  streams,  prominent  rocks,  buildings,  shafts, 
or  mouths  of  adits.    Bearing  trees  must  be  properly  scribed  B  T 
and  bearing  rocks  chiseled   B   R   together  with  the  number  of 
the  mineral  monument;   the  exact  point  on  the  tree  or  stone  to 
which  the  connection   is  taken  should   be   indicated   by  a  cross 
or   other   unmistakable   mark.      Bearings    should    also   be    taken 
to  prominent  mountain  peaks,  and  the  approximate  distance  and 
direction   ascertained   from   the   nearest   town    or   mining   camp. 
A  detailed  description  of  the  mineral  monument,  with   a  topo 
graphical  map  of  its  location,  should  be  furnished  the  General 
Land  Office. 

Where  practicable,  it  is  desired  that  mineral  surveyors  con 
nect  by  course  and  distance  with  mineral  monuments  in  the 
vicinity  other  than  those  prescribed  for  connections  as  being 
within  the  limitation  of  distance.  The  purpose  of  this  is  to 
enable  the  General  Land  Office  to  locate  the  various  mineral 
monuments  established  and  used  prior  to  the  extension  of  .the 
public  subdivisional  surveys  over  the  land. 


296  MINING  LAW 

CORNERS 

19.  Corners  may  consist  of — 

(1)  A  stone  at  least  24  inches  long  set  12  inches  in  the  ground, 
with  a  conical  mound  of  stone  ll/2  feet  high,  2  feet  base,  along 
side,   and  state  kind  of  stone  set  for  corner.     A  stone   should 
always  be  used  for  a  corner  when  possible. 

(2)  A   post  at   least   3   feet  long  by   4   inches   square,   set   18 
inches  in  the  ground  and  surrounded  by  a  substantial  mound  of 
stone  or  earth. 

(3)  A  rock  in  place. 

Should  it  become  necessary  to  vary  from  these  instructions, 
your  returns  must  contain  a  full  statement  of  the  reason  for 
establishing  a  corner  differing  from  those  prescribed. 

20.  All  corners  must  be  established  in  a  permanent  and  work 
manlike  manner,   and   the   corner  and   survey  number  must  be 
neatly  chiseled  or  scribed  on  the  sides  facing  the  claim.     The 
exact  corner  point  must  be  permanently  indicated  on  the  corner. 
When  a  rock  in  place  is  used  its  dimensions  above  ground  must 
be  stated,  and  a  cross  chiseled  at  the  exact  corner  point. 

21.  In   case   the   point  for  the   corner   be   inaccessbile   or   un 
suitable,    you    will    establish    a    witness    corner,    which   must   be 
marked  with  the  latter  W  C  in  addition  to  the  corner  and  survey 
number.     The  witness  corner  should  be  located  upon  a  line  of 
the   survey   and  as   near   as    possible   to   the   true   corner   with 
which  it  must  be  connected  by  course  and  distance.     The  reason 
why  it  is  impossible  or  impracticable  to  establish  the  true  cor 
ner  must   always  be  stated  in   the  field  notes,   and   in   running 
your  next  course  state  whether  you  start  from  the  true  place 
for  corner  or  from  witness  corner. 

22.  The  identity  of  all  corners  should  be  perpetuated  by  taking 
courses  and  distances  to  bearing  trees,  rocks,  and  other  objects, 
as  prescribed  in  the  establishment  of  mineral  monuments,  and 
when  no  bearings  are  given,  state  "no  bearings  available."    Per 
manent  objects   should   be   selected  for  bearings  whenever   pos 
sible. 

23.  If  an  official  mineral  survey  has  been  made  in  the  vicinity, 
within  a  reasonable  distance,  a  further  connecting  line  should 


INSTRUCTIONS  FOR  SURVEYS  297 

be  run  to  some  corner  thereof;  and  in  like  manner  all  conflict 
ing  surveys  and  locations  should  be  so  connected,  and  the  corner 
with  which  connection  is  made  in  each  case  described.  Such 
connections  will  be  made  and  conflicts  shown  according  to  the 
boundaries  of  the  neighboring  or  conflicting  claims  as  each  is 
marked,  defined,  and  actually  established  upon  the  ground.  You 
will  fully  and  specifically  state  in  your  returns  how  and  by 
what  visible  evidences  you  were  able  to  identify  on  the  ground 
the  several  conflicting  surveys  and  those  which  appear  accord 
ing  to  their  returned  tie  or  boundary  lines  to  conflict,  if  they 
were  so  identified,  and  report  errors  or  discrepancies  found  by 
you  in  any  such  surveys.  In  the  survey  of  contiguous  claims 
which  constitute  a  consolidated  group,  where  corners  are  com 
mon,  bearings  should  be  mentioned  but  once. 

Tubular  iron  posts  with  flaring  base,  cement  core,  and  brass 
cap  for  marking  with  steel  stamps,  have  been  adopted  for  agri 
cultural  public-land-survey  corners,  and  it  is  believed  that, 
wherever  possible,  the  establishment  of  similar  corners  for  min 
eral  surveys  would  add  greatly  to  the  value  of  the  survey  made. 
Such  corners  are  identified  at  a  glance,  may  be  accurately  set, 
are  difficult  to  move,  easily  found,  and  are  indestructible.  Their 
use  is  recommended. 

TOPOGRAPHY 

24.  Note   carefully   all   topographical     features    of  the    claim, 
taking  distances  on  your  lines  to  intersections  with  all  streams, 
gulches,    ditches,    ravines,    mountain    ridges,    roads,  trails,    etc., 
with  their  widths,  courses,  and  other  data  that  may  be  required 
to   map   them   correctly.      If    the   claim   lies   within  a   townsite, 
locate  all  municipal  improvements,   such  as  blocks,  streets  and 
buildings. 

CONFLICTS 

25.  If,  in  running  the  exterior  lines  of  a  claim,  the  survey  is 
found  to  cpnflict  with  the  survey  of  another  claim,  the  distance 
to  the  points  of  intersection,  and  the  courses  and  distances  along 
the  line  intersected  from  an  established  corner  of  such  conflict 
ing  claim  to  such  points  of  intersection,  should  be  described  in 
the  field  notes:  Provided,  That  where  a  corner  of  the  conflicting 


298  MINING  LAW 

survey  falls  within  the  claim  being  surveyed,  such  corner  should 
be  selected  from  which  to  give  the  bearing,  otherwise  the  corner 
nearest  the  intersection  should  be  taken.  The  same  rule  should 
govern  in  the  survey  of  claims  embracing  two  or  more  locations 
the  lines  of  which  intersect. 

LODE  AND   MILLSITE 

26.  A   lode   and   millsite   claim   in   one   survey   will   be   distin 
guished   by   the  letters   A   and   B   following  the  number   of   the 
survey.     The    corners    of    the    millsite    will    be    numbered    inde 
pendently   of   those   of  the   lode.     Corner  No.   1   of   the   millsite 
must  be  connected  with  a  corner  of  the  lode  claim  as  well  as 
with  a  corner  of  the  public  survey  or  mineral  monument. 

FIELD   NOTES 

27.  In  order  that  the  results  of  your  survey  may  be  reported 
in  a  uniform  manner,  you  will  prepare  your  field  notes  and  pre 
liminary  plat  in  strict  conformity  with  the  specimen  field  notes 
and  plats,  which  are  made  part  of  these  instructions.     They  are 
designed  to  furnish  you  all  the  needed  information  concerning 
the  manner  of  describing  the  boundaries,   corners,   connections, 
intersections,  conflicts,  and  improvements,  and  stating  the  varia 
tion,  area,  location,  and  other  data  connected  with   the   survey 
of  mineral  claims,  and  certain  forms  of  affidavits  for  the  sur 
veyor  and   his  assistants. 

28.  When  a  placer  claim  includes  lodes,  or  when  several  con 
tiguous   placer  or   lode   locations   are   included   as   one   claim   in 
one  survey,  you  will  give  to  the  corners  of  each  location  con 
stituting  the  same  a  separate  consecutive  numerical  designation, 
beginning  with  corner  No.  1  in  each  case.     In  the  former  case, 
you  will  first  describe  the  placer  claim  in  your  field  notes. 

29.  Throughout  the  description  of  the  survey,  after  each  refer 
ence  to  the  lines  or  corners  of  a  location,  give  the  name  thereof, 
and   if   unsurveyed   state   the  fact.     If   reference  is  made  to   a 
location  included  in  a  prior  official  survey,  the  survey  number 
must  be  given,  followed  by  the  name  of  the  location.     Describe 
your  corners  once  only. 

30.  The  total   area  of  each  location   in  a  group  embraced  by 


INSTRUCTIONS  FOR  SURVEYS  299 

its  exterior  boundaries,  and  also  the  area  in  conflict  with  each 
intersecting  survey  or  claim,  should  be  stated.  The  area  claimed 
will  not  be  stated.  But  when  locations  of  the  survey  conflict 
with  each  other  such  conflicts  should  only  be  stated  in  connec 
tion  with  the  location  from  which  the  conflicting  area  is  ex 
cluded. 

The  field  notes  and  plat  of  survey  should  not  show  exclusions, 
or  attempt  to  specify  the  net  area  of  the  claim.  These  are  mat 
ters  for  the  applicant  to  state  in  connection  with  his  application 
for  patent,  and  the  notices  posted  and  published.  The  field 
notes  should  merely  show  the  total  and  net  areas  of  conflict, 
so  that  any  exclusion  desired  may  be  readily  made. 

31.  You    will    state    particularly    whether    the    claim    is    upon 
surveyed  or  unsurveyed  public  lands,  giving  in  the  former  case 
the  quarter  sections,  township,  and  range  in  which  it  is  located, 
and  in  the  latter,  the  township  and  range  as  near  as  can  be 
determined.     When  upon  surveyed  lands  the  section  lines  should 
be  indicated  by  full  lines  and  the  quarter-section  lines  by  dotted 
lines. 

32.  The  title  page  must  contain  the  post-office  address  of  the 
claimant  or  his  authorized  agent. 

EXPENDITURE   OF   $50O 

33.  In  making  out  your  certificate  of  the  value  of  the  improve 
ments,  you  will  follow  the  form  prescribed  in  the  specimen  field 
notes. 

34.  Only  actual  expenditures  and  mining  improvements  made 
by  the  claimant  or  his  grantors,  having  a  direct  relation  to  the 
development  of   the   claim,    can    be    included    in    your   estimate. 
"Labor    or    improvements,    within    the    meaning    of   the    statute, 
are   deemed   to  have  been   had   on   a  mining  claim,   whether   it 
consists  of  one  location  or  several,  when  the  labor  is  performed 
or  the  improvements  are  made  for  its  development,  that  is,  to 
facilitate  the  extraction  of  the  metals  it  may  contain."     (6  L.  D., 
222.) 

35.  The  expenditures  required  may  be  made  from  the  surface 
or  in  running  a  tunnel,  drifts,  or  cross-cuts,  for  the  development 
of   the   claim.      Improvements   of   any   other   character,   such   as 


300  MINING  LAW 

buildings,  machinery,  or  roadways,  must  be  excluded  from  your 
estimate  unless  you  show  clearly  that  they  are  associated  with 
actual  excavations,  such  as  cuts,  tunnels,  shafts,  etc.,  are  essen 
tial  to  the  practical  development  of,  and  actually  facilitate  the 
extraction  of  mineral  from  the  claim. 

36.  You  will  locate  all  mining  and  other  improvements  upon 
the  claim  by  courses  and  distances  from  corners  of  the  survey, 
or  from  points  on  the  indicated  lode  line,  or  side  lines,  specify 
ing  with  particularity  and  detail  the  dimensions  and  character 
of   each,   and   the   improvements    upon    each    location    should   be 
numbered    consecutively,    the    point    of    discovery    being    always 
No.  1.     Improvements  made  by  a  former  locator,  who  has  aban 
doned  his  claim,  can  not  be  included  in  the  estimate,  but  should 
be   described   and   located   by   separate   statement,   in   the   notes 
and  on  the  plat. 

37.  You  will  give  in  detail  the  value  of  each  mining  improve 
ment   included   in   your   estimate   of   expenditures,   and    when    a 
tunnel  or  other  improvement  has  been  madejfor  the  development 
of  other  claims  in   connection   with   the   one  for  which   survey 
is  made,  you  must  give  the  name,  ownership,  and  survey  num 
ber,  if  any,  of  each  claim  to  be  credited,  and  the  value  of  the 
interest  credited  to  each  claim. 

38.  In   case  of  a  lode  and  mill   site   in  the  same  survey,  an 
expenditure  of  $500  is  required  to  be  shown  upon  the  lode  claim 
only. 

*     COMMON   IMPROVEMENTS,  ETC. 

39.  When  a  survey  embraces  several  locations  held  in  common 
constituting  one  entire  claim  whether  lode  or  placer,  an  expend 
iture  of  $500  for  each  location  embraced  in  the  survey  will  be 
sufficient. 

It  was  held   (syllabus)   in  35  L.  D.,  361,  that — 

Where  several  contiguous  mining  claims  are  held  in  common 
and  expenditures  are  made  upon  an  improvement  intended  to 
aid  in  the  common  development  of  all  of  the  claims  so  held, 
and  which  is  of  such  character  as  to  redound  to  the  benefit  of 
all,  such  improvement  is  properly  called  a  common  improvement. 

Each  of  a  group  of  contiguous  mining  claims  held  in  common 
and  developed  by  a  common  improvement  has  an  equal,  undi 
vided  interest  in  such  improvement,  which  is  to  be  determined 


INSTRUCTIONS  FOR  SURVEYS  301 

by  a  calculation  based  upon  the  number  of  claims  in  the  group 
and  the  value  of  the  common  improvement. 

There  is  no  authority  in  the  law  for  an  unequal  assignment 
of  credits  out  of  the  cost  of  an  improvement  made  for  the  com 
mon  benefit  of  a  number  of  mining  claims,  or  the  apportionment 
of  a  physical  segment  of  an  improvement  of  that  character  to 
any  particular  claim  or  claims  of  the  number,  such  an  arbitrary 
judgment  of  credits,  as  the  exigencies  of  the  case  may  seem  to 
require,  being  utterly  at  variance  with  the  essential  idea  in 
herent  in  the  term,  a  common  improvement. 

In  any  patent  proceedings  where  a  part  of  a  group  of  mining 
claims  is  applied  for  and  reliance  is  had  upon  a  common  im 
provement,  the  land  department  should  be  fully  advised  as  to 
the  total  number  of  claims  embraced  in  the  group,  as  to  their 
ownership,  and  as  to  their  relative  situations,  properly  delineated 
upon  an  authenticated  map  or  diagram.  Such  information  should 
always  be  furnished  in  connection  with  the  first  proceeding  in 
volving  an  application  of  credit  from  the  common  improvement, 
and  should  be  referred  to  and  properly  supplemented  in  each 
subsequent  patent  application  in  which  a  like  credit  is  sought 
to  be  applied. 

IMPROVEMENTS    SUCCEED   LOCATIONS,  ETC. 

It  was  also  held   (syllabus)   in  36  L.  D.,  551,  that— 

A  common  improvement  or  system,  offered  for  patent  purposes, 
although  of  sufficient  aggregate  value  and  of  the  requisite  benefit 
to  all  the  mining  claims  of  a  group,  can  not  be  accepted  as  it 
then  stands  .in  full  satisfaction  of  the  statutory  requirements 
as  to  such  of  the  claims  the  location  of  which  it  preceded,  the 
law  requiring  that  an  expenditure  of  at  least  $500  shall  succeed 
the  location  of  every  claim. 

If  the  requisite  benefit  to  the  group  is  shown,  or  to  the  extent 
of  such  of  the  claims  as  are  so  benefited,  and  the  elements  of 
contiguity  and  common  interest  in  the  claims  concerned  appear; 
if  the  improvement  represents  a  total  value  sufficient  for  patent 
purposes  for  the  number  of  claims  so  involved;  if  for  each  claim 
located  after  the  partial  construction  of  the  improvement  the 
latter  has  been  subsequently  extended  so  as  to  represent  an 
added  value  of  not  less  than  $500,  each  is  entitled  under  the  law 
to  a  share  of  the  value  of  the  common  improvement  in  its  en 
tirety,  no  claim  receiving  more  or  less  than  another  from  that 
source,  participating  therein  without  distinction  or  difference, 
and  as  to  each  the  statutory  requirement  is  satisfied. 

40.  The  explanatory  statement  in  such  cases  should  be  given 
in  your  field  notes,  or  affidavit,  at  the  conclusion  of  the  descrip- 


302  MINING  LAW 

tion  of  the  improvements  included  in  the  estimate  of  expend 
iture,  and  should  be  as  full  and  explicit  as  the  facts  in  the  case 
warrant,  dealing  only  with  the  improvements,  conditions,  and 
circumstances  as  they  actually  existed  at  the  time  of  making 
the  survey  or  examination. 

41.  If  the  value  of  the  labor  and  improvements  upon  a  min 
eral   claim    is   less   than   $500   at  the   time   of   survey,  you  are 
authorized   to  file   thereafter   supplemental   proof,   showing  $500 
expenditure  made  prior  to  the  expiration  of  the  period  of  pub 
lication.     The  information  on  which  to  base  this  proof  must  be 
derived   by   the   surveyor,    who   makes    the   actual    survey,    from 
a  careful  examination  upon  the  premises. 

42.  You  will  file  with  your  field  notes  a  preliminary  plat  made 
on  tracing  cloth,  protracted  on  a  scale  of  200  feet  to  an  inch, 
if  practicable,   in   conformity   with   the   specimen   plat  herewith. 
In  preparing  plats  make  the  top  north.     Copy  of  your  calcula 
tions  of  areas  by  double  meridian  distances  and  all  triangula- 
tions   or   traverse   lines   must  also   be   furnished.     The   lines   of 
the  claim   surveyed,  on  this  plat  and  on  all  plats  of  approved 
surveys,  should  be  heavier  and  show  a  contrast  with  conflicting 
claims. 

ERRORS 

43.  Where   error   in   an   original    survey   appears   prior   to   the 
issuance   of   patent,   the   surveyor,   who   made  such  survey,   will 
be  required  to  make  the  necessary  corrections  in  the  field  within 
a    specified    time;    and    failure    or   refusal,    without    satisfactory 
reason   therefor,   to   comply   with    instructions    will   be   followed 
by  suspension  or  revocation  of  appointment.     The  mineral  claim 
ant  will  be  notified  of  the  action  taken  and  given  a  reasonable 
time  to  apply  for  an  amended  survey. 

Whenever  a  survey  is  reported  in  error  by  a  surveyor,  the 
surveyor  who  made  the  survey  will  be  required  promptly  to 
examine  same  upon  the  ground,  and,  if  found  in  error,  will 
report  the  errors  in  detail,  under  oath,  to  the  surveyor-general's 
office.  If  he  should  report  his  survey  correct,  a  joint  survey 
with  the  surveyor  who  reported  the  errors  will  be  ordered  to 
settle  the  differences. 


INSTRUCTIONS  FOR  SURVEYS  303 

• 

JOINT   SURVEY 

44.  A  joint  survey  must  be  made  within   ten   days   after  the 
date  of  order,  unless  satisfactory  reasons  are  submitted,  under 
oath,  for  a  postponement. 

45.  The  fieldwork  must  in  every  sense  of  the  term  be  a  joint 
and  not  a  separate  survey,  and  the  observations  and  measure 
ments   taken   with   the   same    instrument   and   chain,   previously 
tested  and  agreed  upon. 

46.  The  surveyor  found  in  error,  will  make  out  the  field  notes 
of  the  joint  survey,  which,  after  being  duly  signed  and  sworn 
to  by  both  parties,  must  be  transmitted  to  the  surveyor-general's 
office. 

AMENDED    SURVEYS 

47.  Inasmuch  as  amended  surveys  are  ordered  only  by  special 
instructions    from   the   General   Land   Office,   and   the  conditions 
and  circumstances  peculiar  to  each  separate  case,  and  the  object 
sought    by    the    required    amendment,    alone    govern    all    special 
matters  relative  to  the  manner  of  making  such  survey  and  the 
form  and  subject-matter  to  be  embraced  in  the  field  notes  thereof, 
but  few  general  rules  applicable  to  all  cases  can  be  laid  down. 

48.  The   amended   survey   must  be  made  in   strict   conformity 
with,  or  be  embraced  within,  the  lines  of  the  original  survey. 
If   the   amended    and    original    surveys    are    identical,   that   fact 
must  be   clearly   and   distinctly   stated   in   your   field   notes.      If 
not  identical,  a  bearing  and  distance  must  be  given  from  each 
established  corner  of  the  original  survey.     The  lines  of  the  orig 
inal  survey,  as  found  upon  the  ground,  must  be  laid  down  upon 
the  preliminary  plat  in  such  manner  as  to  contrast  and  show 
their  relation  to  the  lines  of  the  amended  survey. 

49.  The  field  notes  of  the  amended  survey  must  be  prepared 
on  the  same  size  and  form  of  blanks  as  are  the  field  notes  of 
the    original    survey,    and    the   word    "amended"    must   be    used 
before  the  word  "survey"  wherever  it  occurs  in  the  field  notes. 

DESCRIPTIVE   REPORTS   ON   PLACER   CLAIMS 

50.  By    General   land   Office   circular,    approved   May   21,    1907, 
paragraph  60,  you  are  required  to  make  a  full  examination  of 


304  MINING  LAW 

all  placer  claims  at  the  time  of  survey,  and  file  with  your  field 
notes  a  descriptive  report,  in  which  you  will  describe: 

(a)  The  quality  and  composition  of  the  soil,  and  the  kind  and 
amount  of  timber,  and  other  vegetation. 

(&)  The  location  and  size  of  streams,  and  such  other  matter 
as  may  appear  upon  the  surface  of  the  claims. 

(c)  The  character  and  extent  of  all  surface  and  underground 
workings,  whether  placer  or  lode,  for  mining  purposes,  locating 
and  describing  them. 

(d)  The  proximity  of  centers  of  trade  or  residence. 

(e)  The  proximity  of  well-known  systems  of  lode  deposits  or 
of  individual  lodes. 

(f)  The   use  or  adaptability  of  the  claim  for  placer  mining, 
and  whether  water  has  been  brought  upon  it  in  sufficient  quan 
tity  to  mine  the  same,  or  whether  it  can  be  procured  for  that 
purpose. 

(g)  What  works  or  expenditures  have  been  made  by  the  claim 
ant  or  his  grantors  for  the  development  of  the  claim,  and  their 
situation  and  location  with  respect  to  the  same  as  applied  for. 

(ft)  The  true  situation  of  all  mines,  salt  licks,  salt  springs, 
and  mill-seats,  which  comes  to  your  knowledge,  or  report  that 
none  exist  on  the  claim,  as  the  facts  may  warrant. 

(i)  Said  report  must  be  made  under  oath,  and  duly  corrob 
orated  by  one  or  more  disinterested  persons. 

51.  Descriptive   reports,   as  above,   on   placer   claims  taken  by 
legal  subdivisions  will  not  be  made,  as  mineral  surveyors  have 
no   duties  to  perform  touching  such  claims.      (Sec.  2331,  U.   S. 
Rev.   Stats.,  and   paragraph   58,  Mining  Circular,   approved   May 
21,  1907.) 

PRACTICE 

52.  Claimants,  their  attorneys,  or  parties  in  interest  shall  not 
be  employed  as  assistants  in  making  mineral  surveys. 

53.  Your  fieldwork  must  be  accurately  and  properly  performed 
and  your  returns  made  in  conformity  with  the  foregoing  instruc 
tions.     Errors  in  the  survey  must  be  corrected  at  your  own  ex 
pense,    and    if    the   time    required    in    the    examination    of    your 
returns  is  increased  by  reason  of  your  neglect  or  carelessness, 
you   will  be   required  to   make  an   additional   deposit   for   office 


INSTRUCTIONS  FOR  SURVEYS  305 

work.  You  will  be  held  to  a  strict  accountability  for  the  faithful 
discharge  of  your  duties,  and  will  be  required  to  observe  fully 
the  requirements  and  regulations  in  force  as  to  making  mineral 
surveys.  If  found  incompetent  as  a  surveyor,  careless  in  the 
discharge  of  your  duties,  or  guilty  of  a  violation  of  said  regula 
tions,  your  appointment  will  be  promptly  revoked. 

A  mineral  surveyor  is  within  the  purview  of  section  452  of 
the  Revised  Statutes,  which  prohibits  officers,  clerks,  and  em 
ployees  in  the  General  Land  Office  from  directly  or  indirectly 
purchasing  or  becoming  interested  in  the  purchase  of  any  of 
the  public  lands,  upon  penalty  of  forfeiture  of  his  official  posi 
tion.  (36  L.  D.,  61.) 


CIRCULAR  TO  APPLICANTS 

Applicants  for  mineral  survey  orders  will  observe  the  follow 
ing  requirements  in  the  conduct  of  their  business  with  the 
surveyor-general's  office,  the  same  being  based  upon  the  United 
States  mining  laws,  and  circular  and  special  instructions  from 
the  Commissioner  of  the  General  Land  Office: 

1.  All   applications   for   survey   orders,    descriptive   reports   on 
placer    claims,    or    certificates    of    $500    expenditures,    should    be 
addressed  to  the  surveyor-general,*  and  be  signed  by  the  claim 
ants,  their  agents  or  attorney. 

2.  Each  application  should  contain: 

(a)  The  name  of  the  claimant  in  full,  and  as  it  is  desired 
to  appear  in  the  application  for  the  patent. 

(&)  The  name  of  the  land  and  mining  districts  in  which  the 
claim  is  located. 

(d)  The  name  of  the  mineral  surveyor  to  whom  it  is  desired 
the  order  shall  be  issued. 

(For  form  of  application  see  page  311.) 

3.  The  applicant  is  required  to  file  with  each  application  for 
survey  order  a  copy  of  the  record  of  location  of  the  claim,  prop 
erly  certified  by  the  recorder  of  the  county  or  mining  district 
where  the  claim  is  situate. 

4.  The  mineral   surveyor  is   required  to   survey  the  claim   in 
strict  conformity  with  or  within  the  lines  of  the  location  upon 
which  the  order  of  survey  is  based.     The  applicant  is  therefore 
advised,   before  filing  his  application,   to   see   that  his   location 
has  been  made  in  compliance  with  the  law  and  regulations,  and 
that  it  properly  describes  the  claim  for  which  patent  is  to  be 
sought. 

Section  2324,  United  States  Revised  Statutes,  expressly  pro 
vides  that  "the  location  must  be  distinctly  marked  on  the 
ground  so  that  its  boundaries  can  be  readily  traced,"  and  that 

*See  page  285  for  list  of  offices  of  United  States  surveyors-gen 
eral. 

306 


CIRCULAR  TO  APPLICANTS  307 

"all  records  of  mining  claims  hereafter  made  shall  contain  the 
name  or  names  of  the  locators,  the  date  of  the  location,  and 
such  a  description  of  the  claim  or  claims  located  by  reference 
to  some  natural  object  or  permanent  monument  as  will  identify 
the  claim." 

These  provisions  of  the  law  must  be  strictly  complied  with 
in  each  case,  to  entitle  a  claimant  to  a  survey  and  patent,  and 
therefore  should  a  claimant  under  a  location  made  subsequent 
to  the  passage  of  the  mining  act  of  May  10,  1872  (referred  to 
in  said  section  2324),  who  has  not  complied  with  said  require 
ments  in  regard  to  marking  the  location  upon  the  ground,  and 
recording  the  same,  apply  for  a  survey,  the  surveyor-general  will 
decline  to  order  it. 

The  only  relief  for  a  party  under  such  circumstances  will  be 
to  make  a  new  location  in  conformity  to  law  and  regulations, 
as  no  survey  will  be  approved  by  the  surveyor-general's  office, 
unless  these  and  all  other  provisions  of  law  are  substantially 
complied  with. 

A  lode  locator  may  not,  in  the  same  location,  lawfully  include 
any  surface  area,  or  acquire  any  incidental  mining  rights  therein, 
outside  of  the  course  of,  or  vertical  planes  drawn  downward 
through,  the  established  end  lines  of  his  claim  extended  in  their 
own  direction.  (35  L.  D.,  592.) 

5.  The  surveyor-general  will  furnish  the  applicant  an  esti 
mate  of  the  cost  of  the  platting  and  other  office  work  connected 
with  the  survey  in  his  office,  which  amount  the  applicant  will 
deposit  with  any  assistant  United  States  treasurer,  or  designated 
depository,  in  favor  of  the  United  States  Treasurer,  to  be  passed 
to  the  credit  of  the  fund  created  by  "individual  depositors  for 
surveys  of  the  public  lands."  The  duplicate  certificate  issued 
for  such  deposit  will  be  immediately  forwarded  to  the  office 
of  the  surveyor-general  by  the  applicant  who  will  retain  the 
triplicate  certificate  for  his  own  use  and  security.  Uftder  no 
circumstances  can  this  deposit  be  made  with  or  by  the  surveyor- 
general. 

Payment  for  exemplified  copies  of  plats  or  other  records  in 
the  office  of  the  surveyor-general  will  be  made  or  remitted 


308  MINING  LAW 

directly  to  that  officer,  who  will  promptly  receipt  for  the  same. 
(36  L.  D.,  125.) 

6.  The  various   surveyors-general  have  schedules  of  rates  for 
office  work,  and  an  estimate  of  the  cost  in  any  particular  case 
may  be  had  upon  application. 

Should  an  applicant  deem  an  estimate  excessive,  he  will  be 
allowed  the  right  of  appeal  to  the  General  Land  Office  in  the 
usual  manner. 

In  transmitting  such  an  appeal  the  surveyor-general  should 
transmit  therewith  a  full  report. 

7.  An  application   for  an  amended   survey   order  must  be  ac 
companied  with  a  statement  setting  forth  fully  the  reasons  for 
the  proposed  amendment  and  all  the  material  facts  in  the  matter. 

8.  If,    after    having    obtained    a    survey    order,    the    applicant 
should  abandon  his   purpose  of  having  a  survey  made,   he  can 
apply  the  deposit,  less  the  amount  estimated  for  office  expenses 
already  incurred,  on  a  survey  of  another  claim  if  one  is  desired. 

9.  Upon  discovery  of  any  error  or  defect  in  an  order  the  appli 
cant    is   requested   to    return    it   to    the   surveyor-general's    office 
for  correction  or  amendment. 

10.  If,  after  having  obtained  an  order  for  survey,  the  applicant 
should  find  that  the  record  of  location  does  not  practically  de 
scribe   the   location   as   staked   upon   the   ground,   he   should  file 
a    certified    copy    of   an    amended    location    certificate,    correctly 
describing  the  claim,  and  obtain  an  amended  order  for  survey. 

11.  The    order   of    approval    of    surveys    of   mineral    claims    is 
prescribed  by  General  Land  Office  circular  dated  March  3,  1881, 
as  follows: 

The  mining  survey  first  applied  for  shall  have  the  priority  of 
action  in  all  its  stages  in  the  office  of  the  surveyor-general  in 
cluding  the  delivery  thereof,  over  any  other  survey  of  the  same 
ground  or  any  portion  thereof. 

The  surveyor-general  should  not  order  or  authorize  a  survey 
of  a  claim  which  conflicts  with  one  previously  applied  for  until 
the  survey  first  applied  for  has  been  completed,  examined,  ap 
proved,  and  platted,  and  the  plats  delivered,  unless  the  survey 
first  authorized  is  not  returned  within  a  reasonable  period,  and 
the  applicant  for  a  conflicting  survey  makes  affidavit  that  he 


CIRCULAR  TO  APPLICANTS  309 

believes  (stating  the  reasons  for  his  belief)  that  such  first  appli 
cant  has  abandoned  his  purpose  of  having  a  survey  made,  or  is 
deferring  it  for  vexatious  purposes,  to  wit,  to  postpone  the  sub 
sequent  applicant,  in  which  case  the  surveyor-general  shall  give 
notice  of  such  charges  to  such  first  applicant,  and  call  upon  him 
for  an  explanation  under  oath  of  the  delay.  He  shall  also  re 
quire  the  mineral  surveyor  to  make  a  full  statement  in  writing, 
explanatory  of  the  delay;  and  if  the  surveyor-general  shall  con 
clude  that  good  and  sufficient  reasons  for  such  delay  do  not 
exist,  he  shall  authorize  the  applicant  for  the  conflicting  survey 
to  proceed  with  the  same;  otherwise  the  order  of  proceedings 
shall  not  be  changed. 

When  the  conflict  does  not  appear  until  the  field  notes  of  the 
respective  surveys  are  returned,  then  the  survey  first  applied 
for  should  be  first  examined,  approved,  and  platted,  and  the 
plats  delivered  before  the  field  notes  of  the  survey  last  applied 
for  are  taken  up  for  examination  or  plats  constructed. 

Whenever  an  applicant  for  a  survey  shall  have  reason  to  sup 
pose  that  a  conflicting  claimant  will  also  apply  for  a  survey  for 
patent,  he  may  give  a  notice  in  writing  to  the  surveyor-general 
particularly  describing  such  conflicting  claim,  and  file  a  copy 
of  the  notice  of  location  of  such  conflicting  claim.  In  such  case 
the  surveyor-general  will  not  order  or  authorize  any  survey  of 
such  conflicting  claim  until  the  survey  first  applied  for  has 
been  examined,  completed,  approved,  and  platted,  and  the  plats 
delivered. 

.12.  The  applicant  has  the  option  of  employing  any  United 
States  mineral  surveyor  in  the  district  to  execute  the  order  of 
survey,  and  must  make  satisfactory  arrangements  with  such 
surveyor  for  the  payment  of  his  services  and  those  of  his  assist 
ants  in  making  the  survey,  as  the  United  States  will  not  be 
held  responsible  for  the  payment  of  the  same.  The  duty  of  the 
surveyor  in  any  particular  case  ceases  when  he  has  executed 
the  survey  and  filed  his  returns  of  survey  in  the  surveyor-gen 
eral's  office.  He  is  not  allowed  to  prepare  for  the  mining  claim 
ant  the  papers  in  support  of  an  application  for  patent,  being 
precluded  from  acting  either  directly  or  indirectly  as  attorney 
in  mineral  claims.  (Sec.  2334,  U.  S.  Rev.  Stats.) 


310  MINING  LAW 

13.  The  applicant  is  advised  of  his  right  to  appeal  to  the 
Commissioner  of  the  General  Land  Office  from  the  approval  or 
disapproval  of  the  survey  of  his  claim.  The  appeal  must  be 
in  writing  or  in  print,  should  set  forth  in  brief  and  clear  terms 
the  specific  points  of  exception  to  the  ruling  appealed  from,  and 
should  be  transmitted  through  the  surveyor-general's  office. 


SPECIMEN  FIELD  NOTES  AND  FORMS 

[4—689.] 

APPLICATION    TO    UNITED    STATES    SURVEYOR-GENERAL 
FOR  SURVEY  OP  MINING  CLAIMS. 


,  19, 

UNITED  STATES  SURVEYOR- GENERAL, 


SIR:    ,  claimant — ,  hereby  make. .  application  for  an 

official  survey,  under  the  provisions  of  chapter  6,  title  32,  of  the 
Revised  Statutes  of  the  United  States,  and  regulations  and  in 
structions  thereunder,  of  the  mining  claim  known  as  the , 

situate  in  mining  district,  county,  ,  in  sec 
tion  ,  township  No ,  range  No Said  claim 

is  based  upon  a  valid  location  made  on  ....,  19..,  and  duly  re 
corded  on ,  19. .,  and  is  fully  described  in  the  duly  certified 

copy  of  the  record  of  the  location  certificate,  filed  herewith.  Said 
certificate  contains  the  name  of  the  locator,  the  date  of  location, 
and  such  a  definite  description  of  the  claim  by  reference  to  nat 
ural  objects  or  permanent  monuments  as  will  identify  the  claim, 
and  said  location  has  been  distinctly  marked  by  monuments  on 
the  ground,  so  that  its  boundaries  can  be  readily  traced. 

request  that  you  will  send    an  estimate  of  the 

amount   required   to   defray  the   expenses   of   platting  and   other 

work  in  your  office,  required  under  the  regulations,  that   

may  make  proper  deposit  therefor,  and  that  thereupon  you  will 

cause  the  survey  to  be  made  by    ,  United  States  mineral 

surveyor,  and  proper  action  to  be  taken  thereon  by  your  office, 
as  required  by  the  United  States  mining  laws  and  regulations 
thereunder. 


P.  O.  address 

county, 


311 


312  MINING  LAW 


[4—682.] 
ORDER  FOR  MINERAL  SURVEY. 

DEPARTMENT  OF  THE  INTERIOR, 
OFFICE  OF  U.  S.  SURVEYOR-GENERAL, 


To , 

U,  8.  Mineral  Surveyor, 


SIR:   Application  has  been  filed  in  this  office  by    ,  dated 

,  19. .,  for  an  official  survey  of  the  mining  claim  of , 

known  as  the    ,  situate  in    mining  district,    

county,  in  section ,  township  No ,  range  No , 

which  claim  is  based  upon  a  location  made  on   ,  19..,  and 

duly  recorded  on  ,  19.  .,  and  is  fully  described  in  the  duly 

certified  copy  of  the  record  of  the  location  ceritficate,  filed  by 
the  applicant. .  for  said  survey,  a  copy  of  which  is  herewith 
inclosed.  You  ,are  hereby  directed  to  make  the  survey  of  said 
claim  in  strict  conformity  with  existing  laws,  official  regulations, 
and  instructions  thereunder,  and  to  make  proper  return  to  this 

office.     Said  survey  will  be  designated  as  Survey  No 

Very  respectfully, 


U.  S.  Surveyor-General  for 


[4—683.] 

SPECIMEN  FIELD  NOTES. 
Mineral  Survey  No.  20,000,  A  and  B. 

Lot  No 

Montrose  Land  District. 


SPECIMEN  NOTES  AND  FORMS  313 

FIELD  NOTES 

OF  THE   SURVEY   OF  THE    MINING   CLAIM    OF 

The  Noonday  Tunnel  Gold  Mining  and  Milling  Company, 

KNOWN    AS    THE 

Matchless,  Mascot,  Noonday,  Bryan  and  Little  Olive  Lodes, 

and 

Bryan  Mill  Site 

Gold  Brick  Mining  District, 

Gunnison  County,  Colorado. 

Sections  12  and  13,  Township  50  N, 
Range  3  E.  of  N.  M.  P.  M. 

Surveyed  under  instructions  dated  December  1,  1906, 

By  O.  M.  THAYER, 
U.  8.  Mineral  Surveyor. 

Claim  located   ,  1 

Survey  commenced  May  6,  1907. 
Survey  completed  May  11,  1907. 
Address  of  claimant: 

E.  J.  BROWN,  Secretary, 

Pueblo,  Colorado. 


DATES    OF    AMENDED    LOCATIONS. 

Matchless,  Noonday,  Bryan,  and  Little  Olive  Lodes,  May  7,  1906. 
Mascot  Lode,  June  4,  1906. 
Bryan  Mill  Site,  May  7,  1906. 


314 


MINING  LAW 


FEET. 
250.7 


535.68 
1,006.10 
1,016 


10.32 
250.7 


SURVEY  NO.  20,000  A  and  B. 

MATCHLESS     LODE. 

Beginning  at  Cor.  No.  1. 

On   line   2-3,   Mascot   lode,   of   this   survey. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  MAT.  1-20000  A, 
whence 

The  NE.  Cor.,  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M.,  bears 
N  18°  53'  20"  E.,  9,175.32  ft. 


Thence  N.  51°  45'  W. 

To  Cor.  No.  2. 

A  pine  post,  4  ft.   long,  5  ins.  square,  set  2  ft.  in  the 

ground,  with  mound  of  stone,  scribed  MAT.  2-20000  A. 


Thence  S.  25°  06'  W. 

Intersect  line  4-1,  Noonday  lode,  of  this  survey. 
Intersect  line  2-3,  Noonday  lode,  of  this  survey. 
To  Cor.  No.  3. 

A  pine  post,  4  ft.  long,   5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  MAT.  3-20000  A. 


Thence  S.  51°  45'  E. 

Intersect  line  2-3,  Noonday  lode,  of  this  survey. 

To  Cor.  No.  4. 

On  line  2-3,  Mascot  lode,  of  this  survey. 

A  pine  post,  4  ft.  long,  5   ins.   square,  set  2   ft.  in  the 

ground,  with  mound  of  stone,  scribed  MAT.  4-20000  A, 

whence 
Cor.  No.  4,  Noonday  lode,  of  this  survey,  bears  S.  47°  38' 

E.,  276.96  ft. 


SPECIMEN  NOTES  AND  FORMS 


315 


SURVEY  NO.   20,000  A  and  B— Continued. 
MATCHLESS  LODE — continued. 

Thence  N.  25°  06'  E. 
FEET. 

239.96      Intersect  line  4-1,  Noonday  lode,  of  this  survey. 
1,016        i    To  Cor.  No.  1,  the  place  of  beginning. 


MASCOT  LODE. 

Beginning  at  Cor.  No.   1. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  MAS.  1-20000  A, 
whence 

The  NE.  Cor.,  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M.,  bears 
N.   16°    49'  20"   E.  8,976.06   ft. 
Cor.   No.   3,   Sur.   No.   12479,  A.  Am.  Queen   No   2   lode, 

The  Cortland  Gold  and  Silver  Mining  Company  claim 
ant,  bears  S  39°  49'  30"  W.  406.88  ft. 
Cor.  No.  3,  Sur.  No.  17854,  Grant  lode,  The  Cortland  Gold 

and  Silver  Mining  Company  claimant,  bears  S.  40°  28' 

W.   562.25   ft. 
Cor.  No.  1,  Sur.  No.  17854,  Brown  lode,  bears  S.  6°  44' 

W.  490  ft. 


Thence  N.  64°  54'  W. 

Intersect  line  3-4,  Sur.  No.  17854,  Grant  lode,  at  N.  27° 

45'  E.  542.73  ft.  from  Cor.  No.  3. 
Intersect  line  3-4,  Sur.  No.  12479,  A.  Am.  Queen  No.  2 

lode,  at  N.  10°  14'  E.  407.15  ft.  from  Cor.  No.  3. 
To.  Cor.  No.  2 
A  pine  post,  4  ft.  long,  5   ins.  square,  set  2   ft.  in  the 

ground,  with  mound  of  stone,  scribed  MAS.  2-20000  A. 


316 


MINING  LAW 


FEET. 

238.77 
1,014.81 
1,254.77 
1,374 


229.72 

292.39 
300 


324.7 
869.74 

1,006.78 
1,374 


SURVEY  NO.  20,000  A  and  B— Continued. 

MASCOT  LODE — continued. 

Thence  S.  25°  06'  W. 

Co.  No.  1,  Matchless  lode,  of  this  survey. 
Intersect  line  4-1,  Noonday  lode,  of  this  survey. 
Cor.  No.  4,  Matchless  lode,  of  this  survey. 
To.  Cor.  No.  3. 

A  pine  post,  4   ft.  long,  5  ins.  square,  set  2   ft.  in  the 
ground,  with  mound  of  stone,  scribed  MAS.  3-20000  A. 


Thence  S.  64°  54'  E. 

Intersect  line  3-4  and  1-2,  Noonday  and  Bryan  lodes,  of 

this  survey,  respectively. 

Intersect  line  4-1,  Bryan  lode,  of  this  survey. 
To  Cor.   No.  4. 
A  pine  post,  4  ft.  long,  5  ins.  square,  set  2   ft.   in  the 

ground,  with  mound  of  stone,  scribed  MAS.  4-20000  A, 

whence 
Cor.  Nos.  4-1,  Noonday  and  Bryan  lodes,  of  this  survey, 

respectively,  bears  N.  18°   43'  W.  51.3  ft. 


Thence  N.  25°  06'  E. 

Intersect  line  4-5,  Sur.  No.  17854,  Brown  lode,  at  S.  17° 

27'  W.  11.34  ft.  from  Cor.  No.  5. 
Intersect  line  6-1,  Sur.  No.  17854,  Brown  lode,  at  S.  79° 

10'  E.  140.70  ft.   from   Cor.   No.   6,  also 
Intersect  line  2-3,  Sur.  No.  17854,  Grant  lode,  at  S.  79° 

10'  E.  153.73  ft.  from  Cor.  No.  3. 
Intersect  line  2-3,  Sur.  No.  12479,  A.  Am.  Queen  No  2 

lode,  at  S.  79°  10'  E.  106.71  fro  mCor.  No.  3. 
To  Cor.  No.  1,  the  place  of  beginning. 


SPECIMEN  NOTES  AND  FORMS 


317 


FEET. 
29.99 
301 


647.84 
900.16 
916 
1,377 


250.22 
301 


SURVEY  NO.  20,000  A  and  B— Continued. 

NOONDAY    LODE. 

Beginning  at  Cor.  No.  1. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  N.  1-20000  A, 
whence 

The  NE.  Cor.  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M.,  bears 
N.  22°  42'  10"  E.  9,163.46  ft. 

Cor.  No.  1,  Little  Olive  lode,  of  this  survey,  bears  N. 
2°  32'  30"  E.  323.3  ft. 


Thence  S.  68°  18'  W. 

Intersect  line  4-1,  Little  Olive  lode,  of  this  survey. 
To   Cor.    No.    2. 

A  pine  post,   4  ft.  long,  5  ins.   square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  N.  2-20000  A. 


Thence  S.  14°  17'  E. 

Intersect  line  4-1,  Little  Olive  lode,  of  this  survey. 
Intersect  line  2-3,  Matchless  lode,  of  this  survey. 
Intersect  line  3-4,  Matchless  lode,  of  this  survey. 
To.  Cor.  No.  3. 

A  pine  post,  4  ft.  long,  5   ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  N.  3-20000  A. 


Thence  N.  68°  18'  E. 

Intersect  line  3-4,  Mascot  lode,  of  this  survey. 
To  Cor.  No.  4. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  N.  4-20000  A. 


318 


MINING  LAW 


FEET. 
416.84 

801.58 
1,377 


50.78 
301 


SURVEY  NO.  20,000  A  and  B— Continued. 

NOONDAY  LODE — continued. 

Thence  N.  14°  17'  W. 

Intersect  lines  2-3  and  4-1,  Mascot  and  Matchless  lodes, 

of  this  survey,  respectively. 

Intersect  line  2-3,  Matchless  lode,  of  this  survey. 
To  Cor.  No.  1,  the  place  of  beginning. 


BRYAN   LODE. 

Beginning  at  Cor.    No.    1. 

Identical  with  Cor.  No.  4,  Noonday  lode,  of  this  sur 
vey,  whence 

The  NE.  Cor.  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M.,  bears 
N.  18°  05'  10"  E.  10,296.64  ft. 

Cor.  No.  4,  Sur.  No.  17854,  Shields  lode,  bears  S.  12° 
06'  W.  845.0  ft. 

Cor.  No.  4,  Sur.  No.  17854,  Brown  lode,  bears  S.  11°  24' 
W.  695.2  ft. 

Cor.  No.  3,  Sur  No.  12479,  B.  Am.  The  Cortland  Mill 
Site,  bears  S.  8°  55'  E.  641.1  ft. 


Thence  S.  68°  18'  W. 

Intersect  line  3-4,  Mascot  lode,  of  this  survey. 

To  Cor.  No.  2. 

Identical  with  Cor.  No.  3,  Noonday  lode,  of  this  survey. 


SPECIMEN  NOTES  AND  FORMS 


319 


FEET. 
694 

704.78 

834 
867.73 

868.34 

875 
1,229.66 

1,493.52 


301 


SURVEY  NO.  20,000  A  and  B— Continued. 

BRYAN  LODE — continued. 

Thence  S.  11°  55'  E. 

Intersect  S.  boundary,  Sec.  12,  at  E.  1,950  ft.  from  SW. 

Cor  said  Section. 
Intersect  line  4-1,  Sur.  No.  17854,  Shields  lode,  at  N.  59° 

28'  E.  49.88  ft.  from  Cor.  No.  4. 
Wagon  road,  course  Northeast  and  Southwest. 
Intersect  line  3-4,  Penguin  lode,  unsurveyed,  J.  M.  Flick, 

claimant,  at  S.  44°  07'  W.  18.79  ft.  from  Cor.  No.  4. 
Intersect  line  2-3,  Sur.  No.  17854,  Shields  lode,  at  N.  59° 

28'  E.  63.51  ft.  from  Cor.  No.  3. 
Creek  1  ft.  wide,  flows  Southwest. 
Intersect  line  1-2,  Penguin  lode,  unsurveyed,  at  S.  44°  07' 

W.  138.82  ft.  from  Cor.  No.  1. 
To  Cor.  No.  3. 
A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.   in  the 

ground,  with  mound  of  stone,  scribed  B.  3-20000  A. 


Thence  N.  68°  18'  E. 

To  Cor.  No.  4. 

A  pine  stump,  about  4  ft.  high,  hewed  to  5  ins.  square, 
scribed  B.  4-20000  A,  whence 

Cor.  No.  1,  Penguin  lode,  unsurveyed,  bears  N.  43°  55' 
W.  342.29  ft. 

Cor.  No.  3,  Pelican  lode,  unsurveyed,  J.  M.  Flick,  claim 
ant,  bears  N.  43°  42'  20"  W.  347.7  ft. 


320 


MINING  LAW 


FEET. 
357.41 

673.97 


688 

739.72 

812.48 

837.53 

938.05 

970 
1,018 
1,344.11 

1,447.16 
1,493.52 


SURVEY  NO.   20,000  A  and  B— Continued. 

BRYAN  LODE — continued. 

Thence  N.  11°  55'  W. 

Intersect  line  2-3,  Pelican  lode,  unsurveyed,  at  N.  59°  28' 

E.   193.28  ft.   from  Cor.  No.   3. 
Intersect  line  4-1,  Pelican  lode,  unsurveyed,  at  N.  59°  28' 

E.  294.70  ft.  from  Cor.  No.  4,  also 
Intersect  line  2-3,  Sur.  No.  17854,  Shields  lode,  at  N.  59° 

28'  E.  376.52   ft.  from  Cor.  No.   3. 
Intersect  S.  boundary  line  of  Sec.  12  at  W.  390  ft.  from 

S.  i/i  Cor.  said  Section. 
Intersect  line  3-4,  Sur.  No.  17854,  Brown  lode,  at  S.  79°  10' 

E.  298.38  ft.  from  Cor.  No.  4. 
Intersect  line  2-3,  Sur.  No.  12479,  B.  Am.  The  Cortland 

Mill  Site,  at  S.  51°  20'  E.  52.84  ft.  from  Cor.  No.  3. 
Intersect  line  4-1,  Sur.  No.  17854,  Shields  lode,  at  N.  59° 

28'  E.  362.90  ft.  from  Cor.  No.  4. 
Intersect  line  3-4,  Sur.  No.  12479,  B.  Am.  The  Cortland 

Mill  Site,  at  N.  9°  41'  E.  91.14  ft.  from  Cor.  No.  3. 
Creek  1  ft.  wide  flows  Southwest. 
Wagon  road,  course  Northeast  and  Southwest. 
Intersect  line  4-5,  Sur.  No.  17854,  Brown  lode,  at  N.  17° 

27'   E.   561.11   ft.   from   Cor.   No.   4. 
Intersect  line  3-4,  Mascot  lode,  of  this  survey. 
To  Cor.  No.  1,  the  place  of  beginning. 


LITTLE    OLIVE    LODE. 

Beginning  at  Cor.  No.  1. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  L.  O.,  1-20000  A, 
whence. 

The  NE.  Cor.  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M.,  bears 

N.  23°  25'  20"  E.  8,860.6  ft. 


SPECIMEN  NOTES  AND  FORMS 


321 


SURVEY  NO.  20,000  A  and  B— Continued. 

LITTLE    OLIVE    LODE Continued. 

Thence  N.  77°  W. 

Intersect  line  4-5,  Sur.  No.  7153,  Little  Dora  lode,  claim 
ant  unknown,  at  N.  50°  E.,  40.38  ft.  from  Cor.  No.  4. 

Intersect  line  3-4,  Sur.  No.  7153,  Little  Dora  lode,  at  N. 
23°  05'  W.,  39.91  ft.  from  Cor.  No.  4. 

To  Cor.  No.  2. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  L.  O.,  2-20000  A, 
whence 

Cor.  No.  4,  Sur.  No.  7153,  Little  Dora  lode,  bears  S.  24° 
05'  E.  40.43  ft. 


FEET. 
243.04 

290.85 
291.72 


1503. 


272.4 


430.39 
1164.20 
1500.92 


Thence  S.  6°  28'  W. 
To  Cor.  No.  3. 

A  pine  post,  4  ft.  long,   5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  L.  O.,  3-20000  A. 


Thence  S.  77°  E. 
To  Cor.  No.  4. 

A  pine  post,  4  ft.  long,  5  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  scribed  L.  O.,  4-20000  A. 


Thence  N.  7°  12'  E. 

Intersect  line  2-3,  Noonday  lode,  of  this  survey. 
Intersect  line  1-2,  Noonday  lode,  of  this  survey. 
To  Cor.  No.  1,  the  place  of  beginning. 


Variation  at  all  corners  14°  10'  E. 


322 


MINING  LAW 


SURVEY  NO.  20,000  A  and  B— Continued. 

LODE  LINES. 

As  near  as  can  be  determined  from  present  develop 
ments  the  veins  of  the  several  locations  embraced  in  this 
claim  extend  as  follows  from  their  respective  discovery 
points: 

Matchless  lode,  458  ft.  N.  25°  06'  E.,  and  558  ft.  S.  25° 
06'  W. 

Mascot  lode,  610  ft.  N.  25°  06'  E.,  and  764  ft.  S.  25° 
06'  W. 

Noonday  lode,  675  ft.  N.  14°  17'  W.,  and  702  ft.  S.  14° 
17'  E. 

Bryan  lode,  347  ft.  N.  11°  55'  W.,  and  1146.52  ft.  S. 
11°  55'  E. 

Little  Olive  lode,  510  ft.  N.  7°  33'  E.,  and  990  ft.  S.  7° 
33'  W. 


FEET. 
435.6 


BRYAN    MILL    SITE    SUR.    20000    B 

Beginning  at  Cor.  No.  1,  identical  with  a  corner  of  the 
location. 

A  pine  post,  4  ft.  long,  4  ins.  square,  set  18  ins.  in  the 
ground,  in  mound  of  stone,  scribed  B.  M.  S.  1-20000  B. 

Cor.  No.  1  of  Bryan  lode  claim  bears  N.  87°  15'  E. 
600  ft. 

The  N.E.  Cor.  of  T.  50  N.,  R.  3  E.,  bears  No.  21°  15'  E. 
10515.05  ft. 

No  bearing  objects  available. 


Thence  N.  85°  W. 

To  Cor.  No.  2,  identical  with  Cor.  of  location. 
A  pine  post,  4  ins.  square,  set  18  ins.  in  the  ground  in 
mound  of  stone,  scribed  B.  M.  S.  2-20000  B. 


SPECIMEN  NOTES  AND  FORMS 


323 


FEET. 
500 


435.6 


500 


SURVEY  NO.  20,000  A  and  B— Continued 

BRYAN  MILL  SITE  SUB.  20000  B — continued 

Thence  S.  5°  W. 

To  Cor.  No.  2,  identical  with  Cor.  of  location. 
A  pine  post,  4  ins.  square,  set  18  ins.  in  the  ground  in 
mound  of  stone,  scribed  B.  M.  S.  3-2000  B. 

Thence  S.  85°  E. 

To  Cor.  No.  4,  identical  with  corner  of  location. 
A  pine  post,   4   ins.  square,  set  18   ins.   in  the  ground, 
scribed  B.  M.  S.  4-20000  B. 

Thence  N.  5°  E. 

To  Cor  No.  1,  beginning. 
Containing  5  acres. 


AREA 

Total  area,  Mascot  lode 

Area  in  conflict  with — 

Tract  "A,"  hereinafter  described 189 

Sur.  No.  12479,  A.  Am.  Queen  No.  2  lode. . .     1.375 

Sur.  No.  17854,  Grant  lode. 1.629 

Sur.  No.  17854,  Grant  lode  (exclusive  of  its 
conflict  with  Sur.  No.  12479,  A.  Am.  Queen 

No.   2   lode) 514 

Sur.  No.  17854,  Grant  lode  (exclusive  of  its 

conflict  with  Tract  A) 1.440 

Sur.  No.  17854,  Grant  lode  (exclusive  of  its 
conflict  with  Tract  "A,"  and  Sur.  No.  12479 

A.  Am.  Queen  No.  2  lode) 325 

Sur.  17854,  Brown  lode 848 


Acres. 
9.463 


324  MINING  LAW 


Acres. 

Total  area  Noonday  lode 9.434 

Area  in  conflict  with — 

Matchless  lode  of  this  survey. 2.017 

Mascot  lode  of  this  survey 1.188 

Little  Olive  lode  of  this  survey 1.998 


Total  area  Bryan  lode 10.170 

Area  in  conflict  with — 

Tract  "B,"  hereinafter  described 172 

Sur.  No.  12479,   B.  Am.   The  Cortland   Mill 

Site     048 

Sur.  No.  17854,  Brown  lode 1.909 

Sur.  No.  17854,  Brown  lode  (exclusive  of  its 

conflict  with  Sur.  No.  12479,  B.  Am.  The 

Cortland  Mill  Site)    1.861 

Sur.  No.  17854,  Shields  lode 1.114 

Sur.  No.   17854,  Shields  lode    (exclusive  of 

its  conflict  with  Sur.  No.  12479,  B.  Am. 

The  Cortland  Mill  Site) 1.110 

Sur.  No.  17854,  Shields  lode(  exclusive  of  its 

conflict  with  Sur.  No.  17854,  Brown  lode)       .976 
Sur.  No.  17854,  Shields  lode  (exclusive  of  its 

conflict  with  Tract  "B") 942 

Sur.  No.  17854,  Shields  lode  (exclusive  of  its 

conflict  with  Sur.  No.  12479,  B.  Am.  The 

Cortland  Mill  Site,  Sur.  No.  17854,  Brown 

lode  and  Tract   "B") 804 

Penguin  lode,  unsurveyed 542 

Penguin  lode,  unsurveyed   (exclusive  of  its 

conflict  with  Sur.  No.  17854,  Shields  lode)       .541 

Pelican  lode,  unsurveyed 1.681 

Mascot  lode  of  this  survey 027 


SPECIMEN  NOTES  AND  FORMS 


325 


Acres. 

Total  area  Little  Olive  lode 9.669 

Area  in  conflict  with — 

Survey  No.  7153,  Little  Dora  lode .017 

Total  area  Matchless  lode 5.694 

Area  Bryan  Mill  Site 5.00 

The  survey  of  each  lode  of  this  location  is  identical  with  the 
respective  amended  location  as  staked  upon  the  ground. 


FEET. 


Beginning  at  a  point  on  line  2-3,  Sur.  No.  17854,  Grant 
lode,  153.73  ft.  from  Cor.  No.  3,  and  on  line  4-1,  Mascot 
lode,  of  this  survey,  at  869.74  ft.  from  Cor.  No.  4.  Thence 
N.  25°  06'  E.  137.04  ft.  to  a  point.  Thence  N.  79°  10'  W. 
54.29  ft.  to  a  point.  Thence  S.  31°  16'  W.  14L73  ft.  to  a 
point.  Thence  S.  79°  10'  E.  70.00  ft.  to  the  place  of  be 
ginning,  containing  0.189  acre. 


TRACT  "B" 

Beginning  at  a  point  on  line  2-3,  Bryan  lode,  of  this 
survey,  and  on  line  4-1,  Sur.  No.  17854,  Shields  lode  at 
N.  59°  28'  E.  49.88  ft.  from  Cor.  No.  4.  Thence  S.  11°  55' 
E.  162.95  ft.  to  a  point.  Thence  N.  44°  07'  E.  18.79  ft.  to 
Cor.  No.  4,  Penguin  lode,  unsurveyed.  Thence  S.  30° 
35'  E.  5.60  ft.  to  Cor.  No.  4,  Pelican  lode,  unsurveyed. 
Thence  N.  59°  28'  E.  35.58  ft.  to  a  point  on  line  2-3.  Sur. 
No.  17854,  Shields  lode,  117.4  ft.  from  Cor.  No.  3.  Thence 
N.  15°  20'  W.  160.62  ft.  to  a  point.  Thence  S.  59°  28'  W. 
43.81  ft.  to  the  place  of  beginning,  containing  0.172  acre. 


The  survey  of  each  lode  of  this  location  is  identical  with  the 
respective  amended  location  as  staked  upon  the  ground. 


326  MINING  LAW 

This  survey  is  located  in  the  S.  %  Sec.  12  and  the  NW.  14  Sec. 
13,  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M. 


EXPENDITURE  OF  FIVE  HUNDRED  DOLLARS 

I  certify  that  the  value  of  the  labor  and  improvements  made 
upon,  or  for  the  benefit  of,  each  of  the  locations  embraced  in  said 
mining  claim  by  the  claimant  or  its  grantors  is  not  less  than 
five  hundred  dollars,  and  that  said  improvements  consist  of: 

The  discovery  cut  of  the  Matchless  lode,  the  face  of  which, 
being  the  discovery  point,  is  on  the  lode  line  458  ft.  from  a  point 
on  line  1-2,  132.47  ft.  from  Cor.  No.  1,  5  ft.  wide,  10  ft.  face  run 
ning  S.  60°  E.  20  ft.  to  mouth.  From  the  face  is  a  tunnel,  5x7 
ft,  running  N.  60°  W.  45  ft,  thence  S.  30°  W.  30  ft. 

Value  of  cut  and  tunnel,  $850. 

No.  1.  The  discovery  tunnel  of  the  Mascot  lode,  the  mouth  of 
which  being  the  discovery  point,  is  on  the  center  line  610  ft.  from 
center  of  line  1-2,  5x7  ft,  running  S.  72°  30'  W.  100  ft. 

Value,$l,000 

No.  2.  A  tunnel,  the  mouth  of  which  bears  from  Cor.  No.  2, 
Mascot  lode,  S.  18°  20'  W.  593  ft,  5x7  ft,  running  N.  79°  20'  W 
205  ft. 

Value,  $2,000. 

No.  1.  The  discovery  shaft  of  the  Noonday  lode,  on  the  center 
line  675  ft  from  the  center  of  line  1-2,  4  x  6.,  45  ft.  deep,  tim 
bered. 

Value,  $450. 

No.  2.  A  shaft  which  bears  from  Cor.  No.  1,  Noonday  lode,  S. 
3°  32'  E.  772  ft.,  4x6  ft.,  15  ft.  deep. 

Value,  $150. 

No.  3.  A  tunnel,  the  mouth  of  which  bears  from  Cor.  No.  4, 
Noonday  lode,  S.  77°  10'  W.  152  ft.,  5x7  ft.,  running  N.  14°  17' 
450  ft. 

Value,  $4,500. 


SPECIMEN  NOTES  AND  FORMS  327 

No.  1.  The  discovery  cut  of  the  Bryan  lode,  the  mouth  of 
which  being  the  discovery  point,  is  on  the  center  line  347  ft. 
from  the  center  of  line  1-2,  5  ft.  wide,  10  ft.  face,  running  N.  14° 
W.  15  ft.,  at  the  face  of  which  is  a  shaft  4x6  ft,  10  ft.  deep. 

Value  of  cut  and  shaft,  $250. 

No.  2.  A  tunnel,  the  mouth  of  which  bears  from  Cor.  No.  2, 
Bryan  lode,  S.  14°  23'  E.  698  ft.,  5x7  ft.,  running  No.  25°  W.  37  ft. 

Value,  $370. 

No.  1.  The  discovery  shaft  of  the  Little  Olive  lode,  on  the 
lode  line  510  ft.  from  a  point  on  line  1-2,  N.  77°  W.  141  ft.  from 
Cor.  No.  1,  4  x  6  ft.,  35  ft.  deep,  timbered. 

Value,  $350. 

No.  2.  A  tunnel,  the  mouth  of  which  bears  from  Cor.  No.  4, 
Little  Olive  lode,  N.  42°  40'  W.  32  ft.,  5x7  ft.,  running  N.  145  ft. 

Value,  $1,450. 


OTHER  IMPROVEMENTS 

A  log  cabin,  the  Northwest  corner  of  which  bears  from  Cor.  No. 
2,  Mascot  lode,  S.  19°  W.  565  ft.,  12  x  16  ft.  Course  of  long  sides 
S.  10°  40'  W. 

A  log  blacksmith  shop,  the  Northwest  corner  of  which  bears 
from  Cor.  No.  2,  Mascot  lode,  S.  18°  30'  W.  600  ft.,  10  x  12.  Course 
of  long  sides  S.  10°  40'  W.  Both  belong  to  claimant  herein. 


INSTRUMENT 

This  survey  was  made  with  a  C.  L.  Berger  mining  transit,  No. 
3126.  The  courses  were  deflected  from  the  true  meridian  as  de 
termined  by  the  direct  solar  observations.  The  distances  were 
measured  with  100-ft.  and  400-ft.  steel  tapes. 


328  MINING  LAW 

REPORT 

The  lode  line  of  each  location  of  this  claim  was  run  directly 
upon  the  ground,  and  the  several  corners  established  by  means 
of  offsets^  from  the  lode  lines.  All  tie  lines  were  run  either  di 
rectly  upon  the  ground  or  by  traverses,  rim  upon  the  ground  and 
submitted  in  a  separate  report  herewith. 

The  NE.  Cor.,  T.  50  N.,  R.  3  E.,  of  N.  M.  P.  M.,  is  a  granite 
stone,  chiseled  with  six  notches  on  the  East  face.  Near  it  are 
4  witness  trees,  blazed  and  scribed  51—4—31  B.  T.,  50—3 — 1  B. 
T.,  50 — 4 — 6  B.  T.,  and  51 — 3 — 36  B.  T.  This  is  the  nearest  stand 
ing  corner  of  the  public  survey  that  can  be  found  and  identified. 

Sur.  No.  12479,  A.  and  B.  Am.  Queen  No.  2  lode  and  The  Cort- 
land  Mill  Site: 

All  the  corners  are  pine  posts,  properly  set  and  scribed  with 
the  number  of  the  corner  and  survey.  I  find  all  courses  and  dis 
tances  to  be  correct  as  approved. 

Sur.  No.  17845,  Grant,  Brown,  and  Shields  lodes. 

All  corners  are  pine  posts,  properly  set  and  scribed  with  the 
numbers  of  the  corner  and  survey.  I  find  all  courses  and  dis 
tances  to  be  correct  as  approved. 

Sur.  No.  7153,  Little  Dora  lode: 

Corners  3,  4,  and  5  are  pine  posts,  properly  set  and  scribed  with 
the  number  of  the  corner  and  survey.  I  find  lines  3-4  and  4-5  to 
be  correct  as  approved. 

NpTE. — The  amended  location  certificate  of  the  Mascot  lode 
fails  to  furnish  the  course  of  line  1-2  and  the  same  is  properly 
given  in  these  field  notes. 


[4—685.1 
FINAL  OATHS  FOR  SURVEYS 

LIST    OF    NAMES 

A    list   of   the   names    of   the   individuals   employed    by   O.   M. 
Thayer,   United   States   mineral   surveyor,    to   assist   in    running, 


SPECIMEN  NOTES  AND  FORMS  329 

measuring,  and  marking  the  lines,  corners,  and  boundaries  de 
scribed  in  the  foregoing  field  notes  of  the  survey  of  the  mining 
claim  of  the  Noonday  Tunnel  Gold  Mining  and  Milling  Company, 
known  as  the  Matchless,  Mascot,  Noonday,  Bryan,  and  Little 
Olive  lodes,  and  Bryan  mill  site,  and  showing  the  respective 
capacities  in  which  they  acted, 

D.  J.   LEHAX,  Chainman. 

,  Chainman. 

,  Axman. 

,  Flagman. 


FINAL   OATHS   OF   ASSISTANTS 

I,  D.  J.  Lehan,  do  solemnly  swear  that  I  assisted  O.  M.  Thayer, 
United  States  mineral  surveyor,  in  marking  the  corners  and  sur 
veying  the  boundaries  of  the  mining  claim  of  the  Noonday  Tun 
nel  Gold  Mining  and  Milling  Company,  known  as  the  Matchless, 
Mascot,  Noonday,  Bryan,  and  Little  Olive  lodes,  and  Bryan  mill 
site,  represented  in  the  foregoing  field  notes  as  having  been  sur 
veyed  by  said  mineral  surveyor  and  under  his  direction;  and  that 
said  survey  has  been  in  all  respects,  to  the  best  of  my  knowledge 
and  belief,  faithfully  and  correctly  executed,  and  the  corner  and 
boundary  monuments  established  according  to  law  and  the  in 
structions  furnished  by  the  United  States  surveyor-general  for 
Colorado. 

D.  J.   LEHAX,  Chainman. 

,  Chainman. 

,  Axman. 

,  Flagman. 

Subscribed  and  sworn  to  by  the  above-named  persons  before  me 
this  28th  day  of  May,  1907. 

[SEAL.]  RICHARD  ROE, 

Notary  Public, 
Gunnison  County,  Colorado. 
My  commission  expires  December  16,  1908, 


330  MINING  LAW 


[4—686.] 
FINAL  OATH  OF  UNITED  STATES  MINERAL  SURVEYOR 

I,  O.  M.  Thayer,  U.  S.  mineral  surveyor,  do  solemnly  swear 
that,  in  pursuance  of  instructions  received  from  the  United 
States  surveyor-general  for  Colorado,  dated  December  1,  1906, 
I  have,  in  strict  conformity  to  the  laws  of  the  United  States, 
the  official  regulations  and  instructions  thereunder,  and  the  in 
structions  of  said  surveyor-general,  faithfully  and  correctly  exe 
cuted  the  survey  of  the  mining  claim  of  the  Noonday  Tunnel 
Gold  Mining  and  Milling  Company,  known  as  the  Matchless,  Mas 
cot,  Noonday,  Bryan,  and  Little  Olive  lodes,  and  Bryan  mill  site, 
situate  in  Gold  Brick  mining  district,  Gunnison  County,  Colorado, 
in  sections  12  and  13,  township  No.  50  N.,  range  No.  3  E.  of  N.  M. 
P.  M.,  and  designated  as  survey  No.  20000,  A  and  B,  as  repre 
sented  in  the  foregoing  field  notes,  which  accurately  show  the 
boundaries  of  said  mining  claim  as  distinctly  marked  by  monu 
ments  on  the  ground,  and  described  in  the  attached  copy  of  each 
location  certificate,  which  was  received  by  me  from  the  surveyor- 
general  with  said  instructions,  and  that  all  the  corners  of  said 
survey  have  been  established  and  perpetuated  in  strict  accord 
ance  with  the  law,  official  regulations,  and  instructions  there 
under;  and  I  do  further  solemnly  swear  that  the  foregoing  are 
the  true  and  original  field  notes  of  said  survey  and  my  report 
therein,  and  that  the  labor  expended  and  improvements  made 
upon  or  for  the  benefit  of  each  of  the  locations  embraced  in 
said  mining  claim  by  claimant  or  its  grantors  are  as  therein 
fully  stated,  and  that  the  character,  extent,  location,  and  item 
ized  value  thereof  are  specified  therein  with  particularity  and 
full  detail,  and  that  no  portion  of  or  interest  in  said  labor  or 
improvements  so  credited  to  this  claim  has  been  included  in 
the  estimate  of  expenditures  upon  any  other  claim. 

O.  M.  THAYER, 
United  States  Mineral  Surveyor. 


SPECIMEN  NOTES  AND  FORMS  331 

Subscribed  and  sworn  to  by  the  said  O.  M.  Thayer,  United 
States  mineral  surveyor,  before  me,  a  notary  public  in  and  for 
Gunnison  County,  Colorado,  this  28th  day  of  May,  1907. 

[SEAL.]  W.  W.  McKEE, 

Notary  Public. 
My  commission  expires  December  20,  1908. 


332  MINING  LAW 

AMENDED  LOCATION  CERTIFICATE,  LAW  OF  1889 
STATE  OF  COLORADO,     ) 

S'S*  * 

County  of  Gunnison, ( 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  the  Noonday  Tunnel 
Gold  Mining  and  Milling  Company,  the  undersigned,  has  this  7th 
day  of  May,  1906,  amended,  located,  and  claimed,  and  by  these 
presents  does  amend,  locate,  and  claim,  by  right  of  discovery  and 
amended  location  certificate  in  compliance  with  the  mining  acts 
of  Congress,  approved  May  10,  1872,  and  with  all  subsequent  acts, 
and  with  section  2409  of  the  general  statutes  of  Colorado,  and 
with  local  customs,  laws,  and  regulations,  1,016  linear  feet  and 
horizontal  measurement  on  the  Matchless  lode,  vein,  ledge,  or 
deposit,  along  the  vein  thereof,  with  all  its  dips,  angles,  and  vari 
ations,  as  allowed  by  law,  together  with  115.12  feet  on  the  west 
erly  and  129  feet  on  the  easterly  side  of  the  middle  of  said  vein 
at  the  surface,  so  far  as  can  be  determined  from  present  develop 
ments,  and  all  veins,  lodes,  ledges,  or  deposits,  and  surface 
ground  within  the  lines  of  said  claim,  458  feet  running  N.  25°  06' 
E.  from  face  of  discovery  cut  and  558  feet  running  S.  .25°  06'  W. 
from  face  of  discovery  cut,  said  discovery  cut  being  situate  upon 
said  lode,  vein,  ledge,  or  deposit,  and  within  the  lines  of  said 
claim,  in  Gold  Brick  mining  district,  county  of  Gunnison,  and 
State  of  Colorado,  described  by  metes  and  bounds,  as  follows, 
to  wit: 

Beginning  at  Corner  No.  1,  whence  the  NE.  Cor.,  T.  50  N.,  R. 
3  E.  of  N.  M.  P.  M.,  bears  N.  18°  53'  20"  E.  9175.32  ft.  Thence 
N.  51°  45'  W.  250.7  ft.  to  Cor.  No.  2.  Thence  S.  25°  06'  W.  1,016 
ft.  to  Cor.  No.  3.  Thence  S.  51°  45'  E.  250.7  ft.  to  Cor.  No.  4. 
Thence  N.  25°  06'  E.  1,016  ft.  to  Cor.  No.  1,  the  place  of  beginning 

This  being  the  same  lode  originally  located  on  the  23d  day 
of  April,  1890,  and  recorded  on  the  23d  day  of  July,  1890,  in 
book  64,  page  544,  in  the  office  of  the  recorder  of  Gunnison 
County.  This  further  and  amended  certificate  of  location  is 
made  without  waiver  of  any  previously  acquired  rights,  but  for 
the  purpose  of  correcting  any  errors  in  the  original  location, 
description,  or  record. 


SPECIMEN  NOTES  AND  FORMS  333 

THE  NOONDAY  TUNNEL  GOLD  MINING  AND 

MILLING  COMPANY.     [SEAL.] 
By   EDW.   J.   BROWN,   Secretary. 

Said  lode  was  discovered  the  23d  day  of  April  A.  D.  1890. 

Attest:   JOHN  FRANKLIN. 

Date  of  amended  location   May   7,    1906. 

Date  of  amended  certificate  June   14.   1906. 


[BRIEF]  No.  108059. 
AMENDED   LOCATION    CERTIFICATE 

On  the  Matchless  mining  claim  of  the  Noonday  Tunnel  Gold 
Mining  and  Milling  Company,  in  Gold  Brick  mining  district, 
Gunnison  County,  State  of  Colorado. 

STATE  OF  COLORADO, 
County  of  Gunnison, 

I  hereby  certify  that  this  amended  location  certificate  was  filed 
for  record  in  my  office,  at  2  o'clock  p.  m.,  September  13,  1906, 
and  is  duly  recorded  in  book  179,  page  66. 

J.  E.  BROTHERS,  Recorder. 
Fees,  $ By  F.  W.  HARPER,  Deputy. 

STATE  OF  COLORADO,     ^ 
County  of  Gunnison,  (  ss' 

I,  J.  E.  Brothers,  county  clerk  and  recorder  in  and  for  the 
county  of  Gunnison,  State  aforesaid,  do  hereby  certify  that  the 
within  and  foregoing  .is  a  full,  true,  and  correct  copy  of  an 
amended  location  certificate  as  the  same  appears  in  the  records 
of  Gunnison  County,  in  book  179,  page  66. 

Witness  my  hand  and  official  seal  at  Gunnison,  this  19th  day 
of  November,  1906. 

[SEAL.]  J.  E.  BROTHERS,  County  Clerk  and  Recorder. 

By  F.  W.  HARPER,  Deputy. 


334  MINING  LAW 

ADDITIONAL    AND   AMENDED    LOCATION    CERTIFICATE, 
LAW  OF  1889 


STATE  or  COLORADO,    | 
County  of  Gunnison, \  ss' 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  the  Noonday  Tunnel 
Gold  Mining  and  Milling  Company,  the  undersigned,  has  this 
4th  day  of  June,  1906,  amended,  located,  and  claimed,  and  by 
these  presents  does  amend,  locate,  and  claim,  by  right  of  the 
original  discovery  and  this  additional  and  amended  location  cer 
tificate,  in  compliance  with  the  mining  acts  of  Congress,  ap 
proved  May  10,  1872,  and  all  subsequent  acts,  and  with  section 
2409  of  the  general  statutes  of  Colorado,  and  with  local  customs, 
laws,  and  regulations,  1,374  linear  feet  and  horizontal  measure 
ment  on  the  Mascot  lode,  vein,  ledge,  or  deposit,  along  the  vein 
thereof,  with  all  its  dips,  angles,  and  variations,  as  allowed  by 
law,  together  with  150  feet  on  each  side  of  the  middle  of  said 
vein  at  the  surface,  so  far  as  can  be  determined  from  present 
developments,  and  all  veins,  lodes,  ledges,  or  deposits,  and  sur 
face  ground  within  the  lines  of  said  claim,  610  feet  running  N. 
25°  06'  E.  from  mouth  of  discovery  tunnel,  and  764  feet  running 
S.  25°  06'  W.  from  mouth  of  discovery  tunnel,  said  discovery 
tunnel  being  situate  upon  said  lode,  vein,  ledge,  or  deposit,  and 
within  the  lines  of  said  claim,  in  Gold  Brick  mining  distrct, 
county  of  Gunnison,  and  State  of  Colorado,  described  by  metes 
and  bounds  as  follows,  to  wit: 

Beginning  at  Corner  No.  1,  whence  the  NE.  Cor.,  T.  50  N.,  R. 
3  E.,  of  N.  M.  P.  M.  bears  N.  16°  49'  E.  8,976  ft.  Thence  N.  64° 
54'  W.  300  ft,  to  Cor.  No.  2.  Thence  S.  25°  06'  W.  1,374  ft.  to 
Cor.  No.  3.  Thence  S.  64°  54'  E.  300  ft.  to  Cor.  No.  4.  Thence 
N.  25°  06'  E.  1,374  ft.  to  Cor.  No.  1,  the  place  of  beginning. 

This  being  the  same  lode  originally  located  on  the  23d  day  of 
April,  1890,  and  recorded  on  the  23d  day  of  July,  1.890,  in  book 
64,  page  543,  in  the  office  of  the  recorder  of  Gunnison  County. 
This  further  additional  and  amended  certificate  of  location  is 
made  without  waiver  of  any  previously  acquired  rights,  but  for 
the  purpose  of  correcting  any  errors  in  the  original  location, 


SPECIMEN  NOTES  AND  FORMS  335 

description,  or  record,  and  of  taking  in  and  acquiring  all  for 
feited  or  abandoned  overlapping  ground,  and  of  taking  in  any 
part  of  any  overlapping  claim  which  has  been  abandoned,  and 
of  securing  all  the  benefits  of  said  section  2409  of  the  general 
statutes  of  Colorado. 

Said  lode  was  discovered  the  23d  day  of  April,  A.  D.  1890. 
THE  NOONDAY  TUNNEL  GOLD  MINING 
[INTEREST  SEAL.]  AND  MILLING  COMPANY. 

By  EDW.  J.  BROWN,  Secretary. 
Attest:   JOHN  FRANKLIN. 
Date  of  additional  and  amended  certificate  June  14,  A.  D.  1906. 

[BRIEF]  No.  108060. 
ADDITIONAL   AND   AMENDED    LOCATION    CERTIFICATE 

On  the  Mascot  mining  claim  of  The  Noonday  Tunnel  Gold 
Mining  and  Milling  Company  in  Gold  Brick  mining  district,  Gun- 
nison  County,  State  of  Colorado. 

STATE  OF  COLORADO,     ] 
County  of  G-unnison,^  ss' 

I  hereby  certify  that  this  location  certificate  was  filed  for  rec 
ord  in  my  office,  at  2  o'clock  p.  m.,  September  13,  A.  D.  1906,  and 
was  duly  recorded  in  book  179,  page  576. 

J.  E.  BROTHERS,  Recorder. 
By  F.  W.  HARPER,  Deputy. 
Fees,  $ — 

STATE  OF  COLORADO,     ] 
County  of  Gunnison,^  ss' 

I,  J.  E.  Brothers,  county  clerk  and  recorder,  in  and  for  the 
county  of  Gunnison,  State  aforesaid,  do  hereby  certify  that  the 
within  and  foregoing  is  a  full,  true,  and  correct  copy  of  an 
amended  and  additional  location  certificate  as  the  same  appears 
in  the  records  of  Gunnison  County,  in  book,  179,  page  576. 

Witness  my  hand  and  official  seal  at  Gunnison,  this  19th  day 
of  November,  1906. 

[SEAL.]  J.  E.  BROTHERS,  County  Clerk  and  Recorder. 

By  F.  W.  HARPER,  Deputy. 


336  MINING  LAW 


AMENDED  LOCATION  CERTIFICATE,  LAW  OF  1889 


STATE  OF  COLORADO,     ) 
County  of  Gunnison, ( 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  The  Noonday  Tunnel 
Gold  Mining  and  Milling  Company,  the  undersigned,  has  this  7th 
day  of  May,  1906,  amended,  located,  and  claimed,  and  by  these 
presents  does  amend,  locate,  and  claim,  by  right  of  discovery  and 
amended  location  certificate  in  compliance  with  the  mining  acts 
of  Congress,  approved  May  10,  1872,  and  with  all  subsequent  acts, 
and  with  section  2409  of  the  general  statutes  of  Colorado,  and 
with  local  customs,  laws,  and  regulations,  1,377  linear  feet  and 
horizontal  meaurement  on  the  Noonday  lode,  vein,  ledge,  or 
deposit,  along  the  vein  thereof,  with  all  its  dips,  angles,  and 
variations,  as  allowed  by  law,  together  with  150  feet  on  each 
side  of  the  middle  of  said  vein  at  the  surface,  so  far  as  can 
be  determined  from  present  developments,  and  all  veins,  lodes, 
ledges,  or  deposits,  and  surface  ground  within  the  lines  of  said 
claim,  675  feet  running  N.  14°  17'  W.  from  center  of  discovery 
shaft,  and  702  feet  running  S.  14°  17'  E.  from  center  of  discovery 
shaft,  said  discovery  shaft  being  situate  upon  said  lode,  vein, 
ledge,  or  deposit,  and  within  the  lines  of  said  claim,  in  Gold 
Brick  mining  district,  county  of  Gunnison,  and  State  of  Colo 
rado,  described  by  metes  and  bounds,  as  follows,  to  wit: 

Beginning  at  Corner  No.  1,  whence  the  NE.  Cor.,  T.  50  N.,  R. 
3  E.,  of  N.  M.  P.  M.  bears  N.  22°  42'  E.  9,163.5  ft.  Thence  S.  68° 
18'  W.  301  ft.  to  Cor.  No.  2.  Thence  S.  14°  17'  E.  1,377  ft.  to 
Cor.  No.  3.  Thence  N.  68°  18'  E.  301  ft.  to  Cor.  No.  4.  Thence 
N.  14°  17'  W.  1,377  ft.  to  Cor.  No.  1,  the  place  of  beginning. 

This  being  the  same  lode  originally  located  on  the  24th  day 
of  May,  1895,  and  recorded  on  the  1st  day  of  August,  1895,  in 
book  132,  page  53,  in  the  office  of  the  recorder  of  Gunnison 
County,  this  further  and  amended  certificate  of  location  is  made 
without  waiver  of  any  previously  acquired  rights,  but  for  the. 


SPECIMEN  NOTES  AND  FORMS  337 

the   purpose   of   correcting   any   errors   in   the   original    location, 
description,   or   record. 

Said  lode  was  discovered  on  the  24th  day  of  May,  A.  D.  1895. 

THE  NOONDAY  TUNNEL  GOLD  MINING 
[SEAL.]  AND  MILLING  COMPANY, 

By  Enw.  J.  BROWN,  Secretary. 
Attest:   JOHN  FRANKLIN. 
Date  of  amended  location  May  7,  1906. 
Date  of  amended  certificate  June  14,  1906. 

I  BRIEF  |   No.  108058. 
AMENDED  LOCATION  CERTIFICATE 

On  the  Noonday  mining  claim  of  The  Noonday  Tunnel  Gold 
Mining  and  Milling  Company  in  Gold  Brick  mining  district,  Gun- 
nison  County,  State  of  Colorado. 

STATE  OF  COLORADO, 
County  of  Gunnison, 

I  hereby  certify  that  this  amended  location  certificate  was  filed 
for  record  in  my  office  at  2  o'clock  p.  m.,  September  13,  1906,  and 
is  duly  recorded  in  book  179,  page  65. 

J.  E.  BROTHERS,  Recorder. 
By  F.  W.  HARPER,  Deputy. 
Fees,  $ — 

STATE  OF  COLORADO, 
County  of  Gunnison, 

I,  J.  E.  Brothers,  county  clerk  and  recorder  in  and  for  the 
county  of  Gunnison,  State  aforesaid,  do  hereby  certify  that  the 
within  and  foregoing  is  a  full,  true,  and  correct  copy  of  an 
amended  location  certificate  as  the  same  appears  in  the  records 
of  Gunnison  County,  in  book  179,  page  65. 

Witness  my  hand  and  official  seal  at  Gunnison.  this  19th  day 
of  November,  1906. 

[SEAL.]  J.  E.  BROTHERS,  County  Cleric  and  Recorder. 

By  F.  W.  HARPER,  Deputy. 


338  MINING  LAW 


AMENDED  LOCATION  CERTIFICATE,  LAW  OF  1889 


STATK   OF   COLORADO,      J 
County  of  GunnisonA  ss' 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  The  Noonday  Tunnel 
Gold  Mining  and  Milling  Company,  the  undersigned,  has  this  7th 
day  of  May,  1906,  amended,  located,  and  claimed,  and  by  these 
presents  does  amend,  locate,  and  claim,  by  right  of  discovery  and 
amended  location  certificate  in  compliance  with  the  mining  acts 
of  Congress,  approved  May  10,  1872,  and  with  all  subsequent  acts, 
and  with  section  2409  of  the  general  statutes  of  Colorado,  and 
with  local  customs,  laws,  and  regulations,  1,493.52  linear  feet  and 
horizontal  measurement  on  the  Bryan  lode,  vein,  ledge,  or 
deposit,  along  the  vein  thereof,  with  all  its  dips,  angles,  and 
variations,  as  allowed  by  law,  together  with  150  feet  on  each 
side  oj:'  the  middle  of  said  vein  at  the  surface,  so  far  as  can 
be  determined  from  present  developments,  and  all  veins,  lodes, 
ledges,  or  deposits,  and  surface  ground  within  the  lines  of  said 
claim,  347  feet  running  N.  11°  55'  W.  from  mouth  of  discovery 
cut  and  1,146.52  feet  running  S.  11°  55'  E.  from  mouth  of  dis 
covery  cut,  said  discovery  cut  being  situated  upon  said  lode, 
vein,  ledge,  or  deposit,  and  within,  the  lines  of  said  claim,  in 
Gold  Brick  mining  district,  county  of  Gunnison  and  State  of 
Colorado,  described  by  metes  and  bounds  as  follows,  to  wit: 

Beginning  at  Corner  No.  1,  whence  the  NE.  Cor.,  T.  50  N.,  R. 
:J  E.,  of  N.  M.  P.  M.  bears  N.  18°  05'  E.  10,296.6  ft.  Thence  S. 
68°  18'  W.  301  ft.  to  Cor.  No.  2.  Thence  S.  11°  55'  E.  1,493.52 
ft.  to  Cor.  No.  3.  Thence  N.  68°  18'  E.  301.00  ft.  to  Cor.  No.  4. 
Thence  N.  11°  55'  W.  1,493.52  ft.  to  Cor.  No.  1,  the  place  of 
beginning. 

This  being  the  same  lode  originally  located  on  the  14th  day 
of  September,  1896,  and  recorded  on  the  17th  day  of  September. 
1896,  in  book  57,  page  530,  in  the  office  of  the  recorder  of  Gun 
nison'  County.  This  further  and  amended  certificate  of  location 


SPECIMEN  NOTES  AND  FORMS  339 

is  made  without  waiver  of  any  previously  acquired  rights,  but 
for  the  purpose  of  correcting  any  errors  in  the  original  location, 
description  or  record. 

Said  lode  was  discovered  the  5th  day  of  September,  A.  D.  1896. 

[SEAL.]  THE  NOONDAY  TUNNEL  GOLD  MINING 

AND  MILLING  COMPANY. 
By  EDW.  J.  BROWN,  Secretary. 
Attest:   JOHN  FRANKLIN. 
Date  of  amended  location,   May    7,   1906. 
Date  of  amended  certificate,   June  14,  A.   D.   1906. 

[BRIEF]  No.  108056. 
AMENDED  LOCATION  CERTIFICATE 

On  the  Bryan  mining  claim  of  The  Noonday  Tunnel  Gold 
Mining  and  Milling  Company  in  Gold  Brick  mining  district,  Gun- 
nison  County,  State  of  Colorado. 

STATE  OF  COLORADO,     } 
County  of  Gunnison,  (  ss' 

I  hereby  certify  that  this  amended  location  certificate  was  filed 
for  record  in  my  office  at  2  o'clock  p.  m.,  September  13,  A.  D. 
1906,  and  is  duly  recorded  in  book  179,  page  63. 

J.  E.  BROTHERS,  Recorder. 
By  F.  W.  HARPER,  Deputy. 
Fees,  $ 

STATE  OF  COLORADO,     ] 
County  of  Gunnison,^  ss: 

I,  J.  E.  Brothers,  county  clerk  and  recorder  in  and  for  the 
county  of  Gunnison,  State  aforesaid,  do  ^hereby  certify  that  the 
within  and  foregoing  is  a  full,  true,  and  correct  copy  of  an 
amended  location  certificate  as  the  same  appears  in  the  records 
of  Gunnison  County,  in  book  179,  page  63. 

Witness  my  hand  and  official  seal  at  Gunnison,  this  19th  day 
of  November,  1906. 

[SEAL.]  J.  E.  BROTHERS,  County  Clerk  and  Recorder, 

By  F,  W.  HARPER,  Deputy. 


340  MINING  LAW 


AMENDED  LOCATION  CERTIFICATE,  LAW  OF  1889 

STATE  OF  COLORADO, 
County  of  Gunnison,\ 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  The  Noonday  Tunnel 
Gold  Mining  and  Milling  Company,  the  undersigned,  has  this  7th 
day  of  May,  1906,  amended,  located,  and  claimed,  and  by  these 
presents  does  amend,  locate,  and  claim,  by  right  of  discovery  and 
amended  location  certificate  in  compliance  with  the  mining  acts 
of  Congress,  approved  May  10,  1872,  and  with  all  subsequent  acts, 
and  with  section  2409  of  the  general  statutes  of  Colorado,  and 
with  local  customs,  laws,  and  regulations,  1,500  linear  feet  and 
horizontal  measurement  on  the  Little  Olive  lode,  vein,  ledge,  or 
deposit,  along  the  vein  thereof,  with  all  its  dips,  angles,  and 
variations,  as  allowed  by  law,  together  with  150  feet  on  each 
side  of  the  middle  of  said  vein  at  the  surface,  so  far  as  can 
be  determined  from  present  developments,  and  all  veins,  lodes, 
ledges,  or  deposits,  and  surface  ground  within  the  lines  of  said 
claim,  510  feet  running  N.  7°  33'  E.  from  center  of  discovery 
shaft  and  990  feet  running  S.  7°  33'  W.  from  center  of  dis 
covery  shaft,  said  discovery  shaft  being  situate  upon  said  lode, 
vein,  ledge,  or  deposit,  and  within  the  lines  of  said  claim,  in 
Gold  Brick  mining  district,  county  of  Gunnison  and  State  of 
Colorado,  described  by  metes  and  bounds  as  follows,  to  wit: 

Beginning  at  Corner  No.  1,  whence  the  NE.  Cor.,  T.  50  N.,  R. 
3  E.  of  N.  M.  P.  M.,  bears  N.  23°  25'  20"  E.  8,860.6  ft.  Thence 
N.  77°  W.  291.72  ft.  to  Cor.  No.  2.  Thence  S.  6°  28'  W.  1,503 
ft.  to  Cor.  No.  3.  Thence  S.  77°  E.  272.4  ft.  to  Cor.  No.  4. 
Thence  N.  7°  12'  E.  1,500.92  ft.  to  Cor.  No.  1,  the  place  of  be 
ginning. 

This  being  the  same  lode  originally  located  on  the  21st  day 
of  October,  1889,  and  recorded  on  the  7th  day  of  November, 
1889,  in  book  30,  page  444,  in  the  office  of  the  recorder  of  Gun 
nison  County.  This  further,  and  amended  certificate  of  location 


SPECIMEN  NOTES  AND  FORMS  341 

is  made  without  waiver  'of  any  previously  acquired  rights,  but 
for  the  purpose  of  correcting  any  errors  in  the  original  location, 
description,  or  record. 

Said  lode  was  discovered  the  24th  day  of  October,  A.  D.  1889. 
[SEAL.]  THE  NOONDAY  TUNNEL  GOLD  MINING 

AND  MILLING  COMPANY. 
By  EDW.  J.  BROWN,  Secretary. 

Attest:   JOHN  FRANKLIN. 

Date  of  amended  location,   May    7,   1906. 

Date  of  amended  certificate,   June    14,   1906. 

[BRIEF]  No.  108057. 
AMENDED  LOCATION  CERTIFICATE 

On  the  Little  Olive  mining  claim  of  the  Noonday  Tunnel  Gold 
Mining  and  Milling  Company  in  Gold  Brick  mining  district,  Gun- 
nison  County,  State  of  Colorado. 

STATE  OF  COLORADO,     | 
County  of  Gunnison  A  ss' 

I  hereby  certify  that  this  amended  location  certificate  was  filed 
for  record  in  my  office  at  2  o'clock  p.  m.,  September  13,  1906,  and 
is  duly  recorded  in  book  179,  page  64. 

J.  E.  BROTHERS,  Recorder. 
By  F.  W.  HARPER,  Deputy. 
STATE  OF  COLORADO,     ] 
County  of  GunnisonA  ss> 

I,  J.  E.  Brothers,  county  clerk  and  recorder  in  and  for  the 
county  of  Gunnison,  State  aforesaid,  do  hereby  certify  that  the 
within  and  foregoing  is  a  full,  true,  and  correct  copy  of  an 
amended  location  certificate  as  the  same  appears  in  the  records 
of  Gunnison  County,  in  book  179,  page  64. 

Witness  my  hand  and  official  seal  at  Gunnison,  this  19th  day 
of  November,  1906. 

[SEAL.]  J.  E.  BROTHERS,  County  Clerk  and  Recorder. 

By  F.  W.  HARPER,  Deputy. 


342  MINING  LAW 

LOCATION  OP  MILL   SITE 


STATE  OF  COLORADO,     ) 

ss  * 
County  of  Gunnison,  ( 

Kxow  ALL  MEN  BY  THESE  PRESENTS,  That  The  Noonday  Tunnel 
Gold  Mining  and  Milling  Company  does  hereby  declare  and  pub 
lish  as  a  legal  notice  to  all  the  world  that  it  has  a  valid  right 
to  the  occupation,  possession,  and  enjoyment  of  all  and  singular 
that  tract  or  parcel  of  land,  not  exceeding  five  acres,  situate, 
lying,  and  being  in  Gold  Brick  mining  district,  in  the  county 
of  Gunnison,  in  the  State  of  Colorado,  bounded  and  described 
as  follows,  to  wit: 

THE    BRYAN     MILL    SITE. 

Beginning  at  Cor.  No.  1,  whence  the  NE.  Cor.,  T.  50  N.,  R.  3 
E.,  bears  N.  20°  15'  E.  11,000  ft.  Thence  N.  5°  E.  500  ft.  Thence 
N.  85°  W.  435.6  ft.  Thence  S.  5°  W.  500  ft.  Thence  S.  85°  E. 
435.6  ft.  to  Cor.  No.  1,  the  place  of  beginning,  containing  5  acres. 

Together  with  all  and  singular  the  hereditaments  and  appur 
tenances  thereunto  belonging. 

Witness  its  hand  and  seal  this  7th  day  of  May,  1906. 

[SEAL.]   THE  NOONDAY  TUNNEL  GOLD  MINING  AND  MILLING  COMPANY. 
By  EDW.  J.  BROWN,  Secretary. 

STATE  OF  COLORADO,     | 
County  of  Gunnison,  (  ss> 

I.  J.  E.  Brothers,  county  clerk  and  recorder,  in  and  for  the 
county  of  Gunnison,  State  aforesaid,  do  hereby  certify  that  the 
within  and  foregoing  is  a  full,  true,  and  correct  copy  of  a  loca 
tion  certificate  as  the  same  appears  in  the  records  of  Gunnison 
County,  in  book  180,  page  76. 

Witness  my  hand  and  official  seal  at  Gunnison,  this  19th  day 
of  November,  1906. 

[SEAL.]  J.  E.  BROTHERS, 

County  Clerk  and  Recorder. 
By  F.  W,  HARPER,  Deputy. 


SPECIMEN  FIELD  NOTES  AND  FORMS  343 


[4—687.] 

SURVEYOR-GENERAL'S  CERTIFICATE  OF  APPROVAL  OF 
FIELD  NOTES  AND  SURVEY  OF  MINING  CLAIM 


DEPARTMENT  OF  THE  INTERIOR, 
OFFICE  OF  U.  S.  SURVEYOR-GENERAL, 


I,  United  States  surveyor-general  for  ,  do  hereby  certify 

that  the  foregoing  and  hereto  attached  field  notes  and  return  of 

the  survey  of  the  mining  claim  of  ,  known  as  the  

situate  in  mining  district,  Coifnty,  ,  in  sec 
tion  ,  township  No ,  Range  No ,  designated 

as  survey  No ,  executed  by ,  U.  S.  mineral  surveyor, 

,  19. .,  under  my  instructions  dated ,  19.  .,  have  been 

critically  examined  and  the  necessary  corrections  and  explana 
tions  made,  and  the  said  field  notes  and  return,  and  the  survey 
they  describe,  are  hereby  approved.  A  true  copy  of  the  copy  of 
the  location  certificates  filed  by  the  applicant  for  survey  is  in 
cluded  in  the  field  notes. 


U.  8.  Surveyor-General  for 


344  MINING  LAW 


[4— 688.] 

UNITED  STATES  SURVEYOR-GENERAL'S  FINAL  CERTIFI 
CATE  ON  FIELD  NOTES 


DEPARTMENT  OF  THE  INTERIOR, 
OFFICE  OF  U.  S.  SURVEYOR- GENERAL, 

,19 

I,  United  States  surveyor-general  for ,  do  hereby  certify 

that  the  foregoing  transcript  of  the  field  notes,  return,  and  ap 
proval  of  the  survey  of  the  mining  claim  of  ,  known  as 

the    ,    situate    in    mining    district,    County, 

,  in  section ,  township  No ,  range  No , 

and  designated  as  survey  No ,  has  been  correctly  copied 

from  the  originals  on  file  in  this  office;  that  said  field  notes  fur 
nish  such  an  accurate  description  of  said  mining  claim  as  will, 
if  incorporated  into  a  patent,  serve  fully  to  identify  the  prem 
ises,  and  that  such  reference  is  made  therein  to  natural  objects 
or  permanent  monuments  as  will  perpetuate  and  fix  the  locus 
thereof. 

And  I  further  certify  that  five  hundred  dollars'  worth  of  labor 
has  been  expended  or  improvements  made  upon  said  mining  claim 
by  claimant  or grantors  and  that  said  improvements  con 
sist  of and  that  no  portion  of  said  labor  or  improvements 

has  been  included  in  the  estimate  of  expenditure  upon  any  other 
claim. 

I  further  certify  that  the  plat  thereof,  filed  in  the  United  States 
Land  Office  at is  correct  and  in  conformity  with  the  fore 
going  field  notes. 


United  States  Surveyor-General  for 


Wyomina 


INDEX 


Page. 
A 

Acts  of  Congress  Subse 
quent  to  Revised  Stat 
utes  207 

Adverse    by   Co-owner ..  129,132 
Claims,    Annual    Labor...  257 

Contents    126,    264 

During  Patent  Proceed 
ings 71,    73 

Or  Protest,  Which  Neces 
sary    129,    132 

Proceedings   on    199 

Time    Allowed    for   Fil 
ing    126,    128,   265 

Where   filed 127 

Verified    by    Agent 211 

Report     by     Mineral     Ex 
aminer     120 

Results    128 

Affidavit   of   Citizenship 

196,   211,   261 

Verification    204 

Agricultural    Claims,     Apex 

Rights     143 

Entry   on   Coal  Lands 152 

On    Lode   Claim 250 

Lands   Judged    as 268 

Mineral  Location  on...  30 
Agriculture,  Department  of  .272 
Alabama  and  Mining  Laws.  211 
Alaska: 

Adverse    Claims 128,   235 

Affidavits    232 

Annual    Improvements.  ..  232 

Civil    Government 222 

Dyea,  Records  Legalized. 223 

Forfeiture    233 

Instruments,    Where    Re 
corded  ..222 


Miners'   Laws    223 

Mining    Laws     and     Stat 
utes    18,    179,   212 

Performance    of   Work...  232 

Permits   Void    224 

Provision  Reserving  Road 
way    224 

Rights      to      Citizens      of 

Canada     221,   271 

Saline   Laws    247 

Staking    59,   61 

Timber  and  Stone  Act...  154 
Timber,  Use  by  Locator.  157 
Time  Allowed  for  Advers- 

ing    118 

For   filing   location   No 


tice     

For   Filing   Proof   of 

of   Labor    

Aliens,   Rights   of 

Amended    Location     

Specimen    Form 

Survey    282, 

Annual    Labor    and    Patent 


48 

74 
38 
63 
332 
308 

135 

Between  Rival  Claimants.  257 
Failure  to  Perform  ...  76,  242 
Lode  Claims,  Amount  Re 
quired    67,    70 

On  Group    67,   136 

Pending      Patent      Pro-, 

ceedings     70 

What    Counted    as 68 

Work  Rejected  as 69 

Oil   Claims 136,    226 

On    Claims   Held    by   Pos 
sessory    Right    109 

Placer    Claims     87,  245 

Relocation    to   Avoid.  .65,   137 

347 


848 


IXDKX 


Page. 

Resumption     76 

Unpatented    Claims    210 

Apex     Law,     Substance     of 
(see     also     Extralat- 

eral) 138,     140 

Rights,     Agricultural 

Claim     143 

Blanket  Vein    144 

Intersecting    and    Unit 
ing  Veins 144 

Origin   of    139 

Secondary   Vein   142 

Senior    Locator    143 

Appeal  to   Commissioner  of 

Land  Office    310 

Appendix  A,  Digest  of  State 

Statutes    179 

Appendix    B,    Statutes    and 

Regulations     195 

Appendix  C,  Instructions  for 
Survey      of      Mineral 

Lands    285 

Application  for  Patent,  Lode 

Claim 117,    210,    248 

Lodes  Within  Placers 123 

On   Surveyed   Claims 122 

Rights  Pending 201 

Application   for  Patent, 

Placer   Claim    258 

Appropriation  (see  Water). 
Aiizona,  Mining-Law  State.   18 
San  Carlos  Indian  Reser 
vation    219 

Staking   Lode   Claim 60 

Statutes    Regarding   Min 
eral   Location    179 

Timber  and  Stone  Act...  154 
Use   by   Locator.  ..  156,   158 
Time    Allowed    for    Filing 

Location  Notice  ....  48 
Filing  Proof  of  Labor.  74 
Staking  Lode  Claim...  62 

Water  Laws 170,  173,  174 

Arkansas  and  Mining  Laws  18 
Authority   of   Land    Depart 
ment    .  .  .10,  17 


Page. 
Authorities  on  Mining  Law.   12 


Bitter  Root  Valley,  Mining 

Laws  233 

Blackfeet  Indian  Reserva 
tion.  Mining  Laws... 218 

Boundaries,  Changing  of...    63 

Brick  Clay  Under  Agricul 
tural  Entry 90 

Building  Stone  Under  Placer 

Entry. 88,  95,  154,  215,  244 


California,-     a     Mining-Law 

State 18 

Relocation    to   Avoid    An 
nual   Labor    65 

Staking     59 

Statutes    Regarding  Min 
eral  Locations    180 

Timber,   Use   by   Locator.  157 
Time   Allowed   for   Filing 

Location    Notice 48 

Filing  Proof   of  Labor.    74 

Staking     61 

Water  Laws 170,   173,   174 

Certificate    of   Labor 255 

Circular    to    Applicants    for 

Survey    306 

Charges    for    Survey 112 

Citizenship,    Proof    of 

196,  211,  261 

Claims    (see   also  Oil,   Lode, 
Location,  and  Placers). 
Claims,   Changing  of  Boun 
daries    63 

Description   of 201,   240 

Group    57,  67,   91,   136 

Maximum  Size  of.  Lode. 52,  62 

Shape  of  Lode 53 

Staking    of   Lode 48,   306 

Classification   of  Lands.  30,   268 

What  Is  Mineral 35 

Placer    87 

Lode     .  88 


INDEX 


H49 


Page. 
Coal    Land,    Agricultural 

Entry  on    152 

Basis    of    Valuation 149 

Claims,    Maximum    Size.. 146 

When    Filed    146 

Who    May    Enter.. 146,   148 
Methods   for   Purchasing.  148 
Railroad  Grants  Contain 
ing    34 

Coeur  d'Alene  Indian  Lands, 
Coal  and  Oil  De 
posits  • 232 

Colorado,    Mining-Law 

State     18 

Size   of  Lode   Claims 52 

Staking     60 

Statutes    Regarding    Min 
eral  Locations    182 

Timber,  Authority  to  Fell.  209 
Use  by  Locators ....  156,  158 
Time  for  Filing  Location 

Notice    48 

Filing  Proof   of  Labor.    74 

Staking     62 

Water  Laws.... 169,   170,   174 
Commissioner    of    the    Gen 
eral   Land   Office 

16,    287,  310 

Conflicting    Claims.  .40,   56,   308 
Apex  Right  to  Senior  Lo 
cator    143 

Changing    Boundaries....    63 
Failure    to    Perform    An 
nual   Labor    78 

Co-owner,  Adverse  by.  129,  132 

Delinquent     242 

Forfeiture    by     78 

Protest    Rights 130,   132 

Corners,  Material  and  Mark 
ing  278,  296 

Tying    276 

Witness    279 

Costigan's  American  Min 
ing  Law 12 

Courts   and  Land  Office....    17 
Customs    of   Miners 10 


Page. 


I) 


Decisions 12 

Deputy  Mineral   Surveyor.. 

112,   115,   124 

Description  of  Claim..  201,   240 
Discovery  Necessary   in 

Group     Claims 58 

Monument    44 

Shaft    241 

What  Is 40,  44 

Work     4n 

E 

Examination   of   Survey.  ...    26 

Expenditure 119,    281,   299 

Extralateral    Rights    (see 

also    Apex).  .  .55,    94,    109 

F 

Fee    for    Filing    Applica 
tions     118,   267 

For    Survey    112,   307 

Field    Notes,    Form 274,   298 

Specimen    311 

.      Lode    Claim    280 

Placer   Claim    283 

Service  of  Land  Office.  17,  42 

Field,    Stephen,    Cited 14 

'Final   Entry'   Papers 119 

Florida  and  Mining  Laws..    18 

Forest   Reserves 29,    220 

Egress     and     Ingress     of 

Settlers   220 

Land    Restored   to    Public 

Domain     221 

Location  on    29,   161 

Mineral   Lands   Within...  271 
Timber  Used  by  Locator.  163 

Townsites  on    161 

Forest  Service,  Purposes  of.  163 
Forfeiture     by     Failure     to 

Do  Annual  Labor.  ...    76 
Fort  Belknap  Indian  Reser 
vation,  Mineral  Laws. 218 
Fraction     of     Claim,     Loca 
tion    of    .  .57 


850 


INDEX 


Page. 


Grant  of  Land  to   States  or 

Corporations     .......  207 

Group    Claims,    Annual   La 

bor  on    .......  67,  91,   136 

Expenditure     .......  136,   300 

Location    ................    57 

Growth   of  Mining  Law....    13 


H 


History  of  Mining  Law....      9 

Homestead  Claim,   Location 

on     .................    30 

Right   to   Cut  Timber  ____  159 

Subject  to  Water  Right..  206 


Idaho,    Mining-Law    State..    18 

Railroad   Grants    254 

Statutes   Regarding   Min 
eral   Locations    183 

Timber,   Use    by   Locator. 

156,    158 
Time   for   Filing  Location 

Notice    48 

Filing  Proof   of  Labor.    74 

Staking     62 

Water   Laws    170,   174 

Improvements    (see   Annual 
Labor,  Expenditures). 
Indian    Reservations,    Loca 
tion   on    29 

Intersecting  Veins    204 

Iron  Ore  in  Railroad  Grants   34 


Joint   Survey    282,  302 


K 


Kansas  and  Mining  Laws..  208 


Land,   Classification   ...268,   270 
Department,  Authority  of 

10,   17 


Page. 
Location    by  Officers    of 

39,   305 
Restriction    of   Officers 

290,   309 

Districts    16,   206 

Office   Regulations    ......239 

Restored    to    Public    Do 
main     221 

Length   of  Claims   on   Veins 

and  Lodes    195 

Lieu   Lands    33 

Lindley  on   Mines    12 

Local  Land  Offices    16 

Location,  Amended 63 

Specimen    Form     332 

By    Agent     .  . 38 

By     Employees     of     Land 

Office    39 

Law,    Suggested    Changes 

in    108 

Lode  Claim    40 

Method  of  Staking.  ...  59,  61 
Necessary    Before    Survey 

292,   306 

Notice 47,   241 

Contents     48 

Posting   51 

Time    for    Filing 48 

Tunnel-Site    102 

Of    Fraction     57 

Of  Group    57 

Of    Tunnel-Site     101 

On     Homestead     Entry...    30 
Indian    Reservation....    29 

Lieu  Lands 33 

Railroad    Grants.- 34 

School     Sections 32 

Tide-Lands    30 

Timber    and    Stone    En 
tries   30 

Townsite     Reservations  34 
Withdrawn  Lands... 29,  36 

Placer  Claim 86 

Where     Made 28 

Who   May   Make 38 

Locators'   Rights    196 


INDEX 


351 


Page. 
Lode  and   Millsite   Claims 

Combined    280,    298 

Lode  Claim: 

Annual  Labor    70,    242 

And       Adverse       Claim 
ants    257 

On    Group 67 

Pending      Patent      Pro 
ceedings 70 

Apex    Law     138 

Origin     of 139 

Rights  to  Blanket  Vein. 144 
To     Intersecting    and 

Uniting     Veins 144 

To    Secondary    Vein..  142 
To   Senior  Location  ..  143 
Application      for      Patent 
Procedure: 

Adverse     257 

Agricultural     Entry. ...  250 
Final    Entry    Papers... 

117,    119 

Posting    of    Notice 252 

Protest    256 

Publication    of    Notice..  254 

Purchase    of    Land 256 

Railroad    Grants     254 

Survey   and  Approval.. 

Ill,   248 
Valuation   of  Labor.... 

256,    299    | 

Certificate    of    Labor 255 

Changing    Boundaries....    63 

Conflicting 56,    78,    308 

Delinquent    Co-owners.  ..  242 

Description    of    240 

Discovery    Shaft    241 

Expenditure.  ..  .119,  281,  299 
Fraction,  Location  of .  .  .  57 

Group,    Location    of 57 

Including    Millsite    260 

Location    Notice     241 

Maximum  Size... 52,  239,  292 
Philippine  Mining  Laws.  140 
Resumption  of  Work....  76 
Shape  53,  292 


Page. 
Specimen    Field    Notes... 331 

Staking 48,    59,    61,   292 

Tunnel-Location     Notice.  244 

Tunnel    Rights 243 

Who  May   Locate.... 239 

Work     Rejected     as     An 
nual   Labor    69 

Lodes  Cut  in  Tunnel  Work.  103 
Within   Placers    ..95,   98,   100 
123,  125,  245,  259,  280 
What    Deposits   Classified 


Louisiana  and  Mining  Law.   18 
M 

Martin's    Mining    Law    and 

Land  Office  Procedure  12 

Mexican    Land    Grants 34 

Michigan    Entry    Laws 207 

Military  and  National  Park 

Reservations     29 

Millsite,   Annual   Labor 84 

Extent     83 

Located    for   Use    of 

Water    170 

Patenting     125 

Within   Lode   Claim 

260,    280,   298 

Mineral    Examiner,     Report 
of  Survey  of  Adverse 

Claim     120 

Inspector    17 

Lands  Open  to  Purchase.  195 
Open  to  Homestead.  ..  .206 
Set    Apart    as    Agricul 
tural    206 

AVhat  Are    35,   268 

Surveyor.  .  .124,   272,   274,   287 

Instructions    to    289 

Miners'  Tlegulations    ....9,   197 
Mining  Law,  Authorities  on   12 

Growth    of     13 

Origin   of    9 

Provisions   of    12 

States    18 

Records   Lost    .  .  .253 


852 


INDEX 


Page. 

Minnesota   Entry  Laws 207 

Mississippi   and   the  Mining 

Law    18 

Missouri  Excluded  from  Op 
eration      of      Mineral 

Laws    208 

Montana,    Blackfeet    Indian 

Reservation     218 

Fort     Belknap     Reserva 
tion     218 

Mining-Law,    State 18 

Railroad  Grants    254- 

Staking     60 

Statutes    Regarding   Min 
eral  Locations 184 

Timber,   Use   by   Locator. 

156,   158 
Time    Allowed    for    Filing 

Location     Notice 48 

Filing  Proof   of  Labor.    74 

Staking  Claim    62 

Water  Laws....  170,   173,   175 

Monuments 18,  277 

Marking  on    22,   60 

Material   for 60,   114 

To  Govern  Descriptions  ..  201 

Where   Required    59 

Morrison's  Mining  Rights.  .    12 

N 

Nevada,    Mining-Law   State.   J  8 

Staking     60 

Statutes   Regarding   Min 
eral  Locations    186 

Timber,  Use  By  Locators 

156,    158,    209 
Time   Allowed    for    Filing 

Location    Notice 48 

Filing   Proof   of  Labor.    74 

Staking     ." 62 

Water  Rights.  ..  170,  174,  175 
New    Mexico,    Mining-Law 

State    18 

Staking 59 

Statutes    Regarding   Min 
eral    Locations 188 


Page. 

Timber    and    Stone    Act.. 154 
Use    by   Locator ...  156,    158 
Time    Allowed    for   Filing 

Location    Notice    ....    48 
Filing   Proof   of  Labor.    74 

Staking     61 

Water    Rights..  170,    174,    175 
Newspaper   Publication 

Rates     266 

North    Dakota,    Maximum 

Size  Lode   Claims 52 

Mining-Law    State    18 

No    Proof    of   Labor 74 

Staking     60 

Statutes    Regarding    Min 
eral  Locations    190 

Timber,    Use    by  Locator 

156,    158 
Time   Allowed    for    Filing 

Location    Notice 48 

Staking     .  .' o2 

Water  Laws....  170,   174,   175 
Notice     of     Location,     Con 
tents    (lode)    48 

Placer    86 

Posting     51 

Time   for   Filing    48 

O 

Oil-Mining    Claims,    Annual 

Labor    136,   226 

As    Placer 88,    96,   219 

Patent  Work    13G 

Protection    of    Locators.  . 

237,   244 
Oklanoma  and  Mining  Law  18 

Wichita    Lands    217 

Oregon,    Mining-Law    State.   18 

No  Proof  of  Labor 74 

Staking 60 

Statutes    Regarding   Min 
eral     Locations 190 

Timber,  Use  by  Locators.  157 
Time    Allowed    for    Filing 

Location     Notice 48 


INDEX 


853 


Page. 

Staking     62 

Water  Laws 170,   174,   176 


Patent,  Annual  Labor  Pend 
ing    170 

Application    as    Trustee..  257 

Double     110 

Group    of    Claims 136 

How  Obtained    106 

Lodes    Within    Placers.  ..  122 

Millsite   Claim    125 

Nonmineral    Lands 205 

Procedure  for  Lode  Claim 

47,   70,   248 
Procedure   for   Placer 

Claim    122,    203,   258 

Survey   for   Lode   Claim.. 

Ill,   125 

Protest 131 

Subject  to  Water  Rights.  206 
To     Conform     to     Official 

Monuments    201 

To   Break    29,   32 

When  Obtained    108 

Work     134 

Petroleum   (see  also  Oil). 
Statutes     Governing    in 

New  Mexico    190 

Washington     193 

Philippine  Islands  and  Min 
ing   Law 18 

Prohibition    of   Apex 

Rights     140 

Placer    Claims,    Annual    La 
bor    on    87,    91,   245 

Application    for    Patent.. 

122,   258 

Building    Stone    

88,  95,  154,   215,    244 
Conformity    to    Surveys.. 

201,   246 

Discovery    Necessary 244 

Group     91 

Individual   Claims   United   94 
Legal   Subdivisions.  ..  .19,    92 


Page. 

Location     86 

Lodes   Within 95,    98,   123 

125,    245,    259,    280 
Mineral    Surveyor's    Re 
port    124,    283,   304 

Petroleum    Entry    219 

Price    of    Claims 258 

Saline    Lands    247 

Shape  and   Size.. 90,   202,   246 

Staking    29]   94 

Survey    for    Patent..  Ill,   122 

Ten-Acre  Tracts    245 

Unsurveyed  Lands,  Claims 

on    92 

What   Deposits   Are   Con 
sidered  as .    87 

Possession,    Evidence    of...  202 
Possessory   Right..  13,    108,   263 
Posting  Application  for  Pat 
ent  Notice    117 

Lode  Location  Notice.  51,  252 
Pre-emption   Subject   to 

Water    Rights    206 

Proof  of  Citizenship 

196,   211,   261 

Of    Labor    74,   215 

Of    Possessory    Right.... 263 

Protest    131 

After    Issuing   Patent.  ...  109 
Before   Issuing  Patent... 

28,  31,   36,    256 

By   Co-owner 129,   132 

By    Government     120 

By   Relocator 133 

Contents    '.  .126,   131 

During     Patent     Proceed 
ings 71,    73 

Or  Adverse,  Which  Neces 
sary    129,    132 

Timber  and   Stone  Act...  155 

Time    for   Filing 126 

When  Necessary   130 

Provisions   of   Mining  Law.    1 2 

Public  Land    16 

Classification    of 30,    35 

Publication    of    Notice 254 


354 


INDEX 


Page. 


it 


Railroad  Grants    34,  254 

Raven    Mining    Company ...  226 
Registers  and  Receivers... 

16,   250,   267 
Regulations  of  Land  Office.  239 

Relocation    63 

During    Patent    Proceed 
ings 72 

To    Avoid   Annual   Labor. 

65,   136 

Relocator,    Protest    by 133 

Repayment    of   Deposits   for 

Surveys     234 

Report  of  Mineral  Survey 
ors  124 

Reservation   of  Mineral 

Lands    195 

Rickett's  Manual  of  Ameri 
can  Mining  Law 12 

Right  of  Way  for  Ditches 
and  Canals  Construct 
ed  213 

Riparian   Rights,   Substance 

of    (see   also   Water).  167 


San  Carlos  Indian  Reserva 
tion     219 

Sand  and  Gravel  Under  Ag 
ricultural     Entry 90 

Sale,     Conditions    Made    by 

Local    Legislature. ...  205 

Saline  Lands... 88,  95,   225,   247 

School  Sections,  Location  on    32 

Scope   of  State   Statutes....    11 

Secondary  Vein,  Apex 

Rights     142 

Shamel's     Mining,     Mineral, 

and    Geological   Law.    12 

Snyder's  Mines  and  Mining.   12 

South    Dakota,    Maximum 

Size   Lode   Claims 52 

Mining-Law    State    18 

No  Proof  of  Labor  Neces- 

sarv  .    74 


Page. 

Staking     60 

Statutes    Regarding   Min 
eral   Locations    191 

Timber,    Use    by   Locators 

156,   158 
Time    Allowed    for    Filing 

Location    Notice    ....    48 

Staking     62 

Water  Laws 170,   174,   176 

Special  Agents  of  Land 

Office    17,    120 

Staking,  Lode  Claim.  48,   59,   61 
Necessary   Before  Survey.292 

Tunnel-Site     103 

State    Statutes,    Subordinate   11 
Stone  Located  Under  Placer 

Entry     154 

Substance  of  Mining  Law..    13 
Survey,   Amended.  282,   303,    308 
Conformity    of    Placer 

Claims   to 201 

Corners 276,    279,    296 

Errors     in 282,  302,   308 

Examination    of    26 

Field  Notes 274,   298,   304 

Instruments 276,   293 

Method    and    Instructions 

275,   290 

Monumenting    277 

Lode    Claim Ill,    248,   251 

Orders,   Applicants   for... 306 

Placer  Claim   122,  304 

Public    Land    16,   19 

Restriction    of   Officers... 

274,   290 

Specimen    Field    Notes.... 311 
Surveyors,    Appointment... 

203,    266,    286 

Surveyor  s   Bond    267 

Surveyor-General     16,   111 

118,  203,  249,  256,  273,  286 
Sutro  Tunnel-Rights 206 

T 

Texas     Not     a     Mining-Law 

State    .  .IS 


IXDKX 


855 


Page. 

Tide-Lands,   Location   on...    30 
Timber   and   Stone   Entries. 

35,   154 
Timber.  Application   to  Cut. 157 

On    Forest    Reserves 163 

On    Homestead   Claim....  159 

On    Mineral   Land 

156,    158,    163,  220 

On  Public   Domain .  209 

I'sc    of    by    Foreign    Cor 
poration    159 

Title    in   Action    Brought ...  21  o 
Townsite  on  Mineral  Land. 

34.   214 

On    Forest    Reserves 161 

Trustee,   Application   as.... 257 
Tunnel  Location.   Rights... 

101,   197,   243 

Expenditures    208 

Extent     101 

Notice    244 

Requirements     of     Notice 

and   Staking    102 

Work 105 

IT 

Uintah     and     White     River 

Utes,     Reservations.  .225 
I  'm-ompahgre  Indian  Reser 
vation     227 

rtsih.   Mining-Law   State    ..    18 

Staking     59 

Statutes    Regarding   Min 
eral  Locations    192 

Timber,    Use   by   Locators 

156,   158 
Time   Allowed    for    Filing 

Location    Notice 48 

Filing  Proof   of  Labor.    74 

Staking    61 

Water  Rights.  ..  170.  173,   176 

V 
Valuation    of   Coal    Lands.. 149 

Veins,    Intersecting    204 

Blanket     144 

Washington,   Mining-Law 


Page. 

State 1* 

Staking     60 

Statutes    Regarding   Min 
eral   Locations    192 

Timber,  Use  by  Locators.  157 
Time    Allowed    for   Filing 

Location     Notice IN 

Filing  Proof   of  Labor.    74 

Staking     .  . 62 

Water   Laws....  170.    173,    176 

W 

Water  Appropriation,  Meth 
od  of .  .173 

Who    May    Make 169 

Dual  System  of  Rights.    168 

Failure    to    Use 173 

On   Millsite    17" 

Right,  Ditch  or  Reservoir 

170 
Underground     Stream..  170 

Vested     205 

Substance    of    Appropria 
tion    Rights 166 

Of  Riparian  Rights 167 

Wichita    Lands,    Oklahoma.  21 7 
Wind    River    Indian    Reser 
vation    234 

Wisconsin    Entry    Laws....  207 
Withdrawal    of    Land    by 

President    30 

Withdrawn    Larrd,    Location 

on      29 

Witness  Corners    279 

Wyoming,   Mining-Law 

Stat e     IS 

Staking     60 

Statutes    Regarding    Min 
eral   Locations    194 

Time   for   Filing  Location 

Notice    48 

Filing  Proof   of  Labor.    74 

Staking     62 

Timber.  Use  by  Locator.  . 

156,    158 
Water  Rights.  .  .170,  173.   177 


